Young People and Crime

Contributed by ElanorFenge, as amended by EmmaHenke and current to November 2025

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 to adult offenders.

In criminal cases, age is an important factor relevant 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 proceeds 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’), Criminal Code Act (‘CCA’) and the Police Administration Act (‘PAA’)

Youth: Criminal responsibility

Under ten years of age

Criminal responsibility is dealt with at sections 38 and 43AP of the CCA.

Both provisions state ‘a child under 10 years of age is not criminally responsible for an offence’.

Section 43AP applies to the offences listed in schedule 1 of the CCA and section 38 applies to all other offences.

The effect of these sections is that at law, a person of such under 10 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 If this happens, once the police or the court becomes aware of the error, the charges will either be withdrawn or dismissed.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 youth in having the charges dismissed.

Any subsequent reference to youth in this chapter is a reference to a person aged older than 10 but younger than 18 at the time of the commission of the offence.

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. This is known at common law as doli incapax.

This sections 38A and 43AQ of the CCA codify the doctrine of doli incapax and read:

(1) A child 10 years of age or older but under 14 years of age can only be criminally responsible for an offence if the child knows that the child's conduct is wrong.

(2) The question whether a child knows that the child's conduct is wrong is one of fact.

(3) The burden of proving that a child knows that the child's conduct is wrong is on the prosecution.

In order for the presumption of doli incapax to be rebutted, the prosecution must adduce evidence that the child knew that it was morally wrong to commit the offence. Knowing that the conduct was morally wrong is distinct from an awareness that the conduct is merely naughty or mischievous [XN v Kelly [2025] NTSC 49 at [52]]. The capacity of a child to know or understand the moral wrong ness of their actions directs attention to their education and the environment in which they were raised. What will be sufficient to rebut the presumption will vary from case to case. [XN v Kelly [2025] NTSC 49 at [54] citing BDO v The Queen [2023] HCA 16; (2023) 277 CLR 518 at [16]].

BDO v The Queen [2023] HCA 16; (2023) 277 CLR 518 and XN v Kelly [2025] NTSC 49 are the most recent High Court and NT Supreme Court decisions considering doli incapax and are a useful starting point for further research on this topic.

This principle exists because the law recognises that a youth'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.

In court, it is the prosecutor's job to prove to the or judge that the child knew their conduct was morally wrong. The youth's lawyer may argue on behalf of their client that their client did not have this knowledge or that the prosecution cannot prove that they had this knowledge. It is the judge's job to decide this issue. It is important to know that the youth's knowledge 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.

If the presumption is rebutted, the charges will proceed and the youth may be found guilty (if all the other elements of the offence are made out and no other defences are found to apply).

If, however, the prosecution is unable to rebut the presumption, the judge will dismiss the charges and the defendant will be discharged.

Police should not lay charges against a person in this age group unless they believe there is sufficient material to rebut the presumption.

Where the matter is brought to court, the prosecution may rely on evidence about the background of the youth, including whether they have been spoken to by police for earlier offences, and the level of sophistication shown by the youth in the way the offence was committed. Relevant witnesses in such matters often include the child’s parents, school teachers or other people who can give evidence about their level of maturity.

Between 14 and 18 years of age

Youth aged between 14 and 18 are presumed to be criminally responsible and the same provisions relating to criminal responsibility that relate to adults apply to youth in this age range.

A person is considered a youth if they were under 18 at the time of (allegedly) committing the offence [YJA s 6(2)].

Youth diversion

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 which means outside of the court system or they may decide to charge a youth with a criminal offence through the court system.

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.

This applies unless the youth’s whereabouts is unknown, the alleged offence is a prescribed offence or the youth has other history that makes diversion an unsuitable option [YJA s 39(3)].

The Police must prepare or obtain a report:

• if a youth is referred to a diversion program and the youth declines to participate in the program or does not complete the program, a statement of that fact and any reasons offered by the youth for declining or not completing the program [YJA ss 42A(1)(a)]
• if the officer declines to refer the youth to a diversion program, a statement of that fact and the reasons of the officer for declining [YJA ss 42A(1)(b)(e)]

The list of prescribed offences can be found at section 3A of the Youth Justice Regulations.

However, the Commissioner of Police or their delegate can authorise a youth’s matter being dealt with by Youth Justice Conference or Diversion not withstanding the youth’s whereabouts is unknown, the alleged offence is a prescribed offence or the youth has other history that makes diversion an unsuitable option [YJA s 39(4)]. If the Commissioner (or their delegate) declines to refer the youth a diversion program, a report must be prepared containing a statement of that fact and the reasons of the officer for declining [s 42A(1)(c)]. If the Commissioner (or their delegate) refers the youth to a diversion program and the youth declines to participate in the program or does not complete the program, a statement of that fact and any reasons offered by the youth for declining or not completing the program [s 42A(1)(d)].

The Youth Justice Court is empowered to refer the youth to be assessed for inclusion in a diversion program or Youth Justice conference [YJA s 64(1)]. This applies regardless of whether the youth has entered a plea or there has been a finding of guilt [YJA s 64(3)], but does not apply in circumstances where the youth has some other history that makes diversion an unsuitable option (including a history of previous diversion or previous convictions) [s 64(1A)]. Please note, in the absence of a report prepared pursuant to s 42A, it will not be possible to ascertain whether s 64(1A) of the YJA applies. Following an order pursuant to s 64, the matter should be adjourned pending an update from the Youth Diversion Unit (At the Darwin Youth Justice Court, Youth Diversion mentions are listed every second Tuesday morning).

Diversion is only used for those youth who do not deny having a role in the behaviour constituting the offence [YJA s 40]. If the youth wishes to contest the charge, the matter will proceed through the Court to contested hearing.

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: General Principles

The general principles of the YJA are:

• A youth who commits an offence must be held accountable and encouraged to accept responsibility for their behaviour [YJA s 4(a)]
• A youth should be dealt with in a way that acknowledges their needs and provides opportunities to develop in socially responsible ways [YJA s 4(b)]
• A youth must be dealt with in the criminal justice system in a way that is consistent with their age and maturity, and with the same rights and protections before the law as an adult in similar circumstances [YJA s 4(d)]
• A youth should be made aware of their obligations under the law and the consequences of contravening the law [YJA s 4(e)]
• A youth who commits an offence should be dealt with in a way that allows them to be reintegrated into the community [YJA s 4(f)]
• There must be a balanced approach between the needs of the youth, rights of victims, and interests of the community [YJA s 4(g)]
• Family relationships should, where appropriate, be preserved and strengthened [YJA s 4(h)]
• A youth should not be unnecessarily removed from family or have their education/employment unnecessarily interrupted [YJA s 4(i)]
• A youth’s racial, ethnic or cultural identity should be acknowledged and preserved [YJA s 4(j)]
• Victims should be given the opportunity to participate in the process of dealing with the youth [YJA s 4(k)]
• Responsible adults should be encouraged to fulfil their responsibility for the care and supervision of the youth [YJA s 4(l)]
• Decisions affecting a youth should be made and implemented within a time frame appropriate to the youth’s sense of time [YJA s 4(m)]
• Punishment must be designed to develop the youth’s sense of social responsibility and support positive development [YJA s 4(n)]
• Where practicable, an Aboriginal youth should be dealt with in a way that involves their community [YJA s 4(o)]
• Programs and services should be culturally appropriate, promote health and self-respect, foster responsibility, and support skill-building [YJA s 4(p)]
• Unless the public interest requires otherwise, criminal proceedings should not be instituted or continued if there are alternative means of dealing with the matter [YJA s 4(q)]

Youth: Going to Court

Bringing a defendant to Court

The first court date for any youth charged with any offence in the NT will be in the Youth Justice Court.

There are four different ways a youth can end up at the Youth Justice Court for their first appearance.

• The youth is remanded to appear in Court
• The youth is granted bail to appear in Court
• The youth is issued a notice to appear in Court
• The youth is issued a summons to appear in Court

The process for each of these options is largely the same for youth as it is for adults. Please refer to bringing a defendant to Court.

The key differences for youth matters are:

• A youth is required to appear before the Youth Justice Court as opposed to the Local Court.
• A charge for a youth should be by summons except in certain cases [YJA s 22].
• If a youth has been charged and not granted bail, the police officer must:
  • as soon as possible apply to the Court for an order that the youth be detained [YJA s 24]
  • take all reasonable steps to ensure that a responsible adult in respect of the youth is notified that the youth has been detained in custody [YJA s 23].
• For youth, telephone Judge bail reviews are available during weekday business hours and on weekends and public holidays between 2pm and 4pm. This is the process where after Police refuse a child bail and remand the youth in custody to attend in Court in person, a Judge reviews this decision and can either grant to youth bail (to attend Court on a future date) or remand the youth into custody. If the judge remands the youth into custody, they are remanded are still brought to the Court as usual (at which point they may make an application for bail) [See NT Local Court website]
• If a youth is remanded in custody, they must be brought before the Court as soon as practicable and within 24 hours or on the next business day [YJA s 27].

Legal advice

A youth should have legal advice before appearing in court. If the youth finds themself in court and without having had legal advice, they should ask the judge to adjourn the matter to give them time to obtain legal advice.

Legal Aid NT (LANT) provides a duty lawyer at Darwin, Katherine and Alice Springs.

The North Australian Aboriginal Justice Agency (NAAJA) provides free advice and representation for Aboriginal and Torres Strait Islander people in Darwin, Katherine, Alice Springs and the 34 remote circuit courts where the Local Court sits in the NT.

If the person is in custody, a duty lawyer will come and see the person in the interview rooms of the cells.

If the person is not in custody, the person should present to the Legal Aid NT or NAAJA duty office at the Court and request assistance. Both Legal Aid NT and NAAJA have a duty office at the Youth Justice Court in Darwin (as well as the Local Court in Alice Springs, Tennant Creek and Katherine). A lawyer also attends

For further information on these services, please see Legal aid .

Youth Justice Court vs Supreme Court

Youth Justice Court

There is no distinction between charges of complaint and charges of indictment for youth. All youth matters are charged on charge.

All charges for youth are heard and determined in the Youth Justice Court, apart from the following three circumstances:

• An adult offender would be liable to life imprisonment for the charge
• The youth does not consent
• The Youth Justice Court declines to hear the charges

Much like how all proceedings for adults commence in the Local Court, even if one of the above three circumstances apply, the matter will always commence in the Youth Justice Court.

There is a limit to the sentence that Youth Justice Court judges can impose. Even if the offence provision has a higher maximum penalty, the Youth Justice Court must not impose a sentence of more than 12 months imprisonment for a youth under 15 or 2 years imprisonment for a youth aged between 15 and 18 [YJA s 83(2)].

Where is Youth Justice Court held?

In Darwin, the Youth Justice Court is a separate building a distance from the Local Court.

In Alice Springs, Katherine, Tennant Creek and remote Bush Courts, Youth Justice Court proceedings are held in the same building as Local Court proceedings. At the commencement of hearing the hearing of a Youth Justice Court matter (or the first of a particular session) the Court will declare the Youth Justice Court in session. The above special rules still apply. In all Youth Justice Court proceedings, lawyers should use child friendly language and remain seated when they address the Judge.

Responsible adults

A responsible adult in respect of a youth must attend the Court and remain in attendance during proceedings against the youth for an offence [YJA s 63(1)]. A Court may direct a warrant or summons for the responsible adult to attend [YJA s 63(3)]. For a youth in the care of Territory Families Housing and Communities (‘TFHC’), a representative of TFHC will be the responsible adult.

Closed Court

The Court must be closed to the public for proceedings under this Act against a youth [YJA s 49(1)]. Certain persons, such as lawyers, an interpreter or a genuine representative of the news media are permitted to attend the proceedings [YJA s 49(2)].

Restriction of publication

A person who publishes information arising out of Youth Justice Court proceedings that is likely to lead to the identification of where the proceedings were heard, the identity of the defendant or any party to the proceeding or the identity of the witness is guilty of an offence and may be sentenced to 200 penalty units of 12 months imprisonment [YJA s 50].

Community Court

Youth matters are eligible for Community Court unless they must proceed to the Supreme Court. The further eligibility requirements and the process for Community Court is the same as adult matters. Please refer to Community Court. The provisions pertaining to the Community Court sentencing procedure for youth can be found at sections 80A to 80F of the YJA.

Supreme Court

A description of the Supreme Court and general courtroom information that pertains to the Supreme Court can be found here and here.

Youth matters that must proceed to the Supreme Court

In the following three circumstances, matters for youth must proceed to the Supreme Court.

An adult offender would be liable to life imprisonment for the charge

If the charge carries a maximum penalty of life imprisonment for an adult, the Youth Justice Court does not have the power to hear and determine the matter are the matter must proceed to the Supreme Court by way of preliminary examination [YJA s 54A].

Youth does not consent

If a youth is charged with an indictable offence that does not carry imprisonment for an adult and does not fall into the category of indictable property offences that can be dealt with summarily the Youth Justice Court must inform the youth and a responsible adult on the youth’s right to consent or not to the charge being heard and determined by the Youth Justice Court [YJA ss 55(1)(2). If the youth does not consent, the matter must proceed to the Supreme Court by way of preliminary examination [YJA s 55(4)].

Youth Justice Court declines to hear the charges

If at any stage of the proceedings prior to a finding of guilt the Youth Justice Court considers it not appropriate for Youth Justice Court to hear and determine a matter the Youth Justice Court may decline to hear and determine the charge and the matter must proceed to the Supreme Court by way of preliminary examination [YJA s 56(1)]. The Court must give its reasons for declining to hear the charge [YJA s 56(1)(b)]. For the purposes of this section, it does not matter if the youth has elected to have the matter heard summarily [YJA s 56(2)].

Representations

The youth through their lawyer if can, at any point in the proceedings, write to the prosecutor to negotiate the charges and the facts. This correspondence is referred to as representations . For example, the youth may offer to plea guilty to some of the charges if the prosecutor withdraws the other charges and makes amendments to the facts. All representations sent to the prosecutor should contain a note that they are sent without admissions. This indicates that the defendant is not admitting to the offence and that the contents of the representations cannot be used to prove the charges against them.

Public interest representations

The prosecution has considerable discretion when deciding whether to prosecute a complaint. The prosecutor, whose job it is to consider the available evidence, weighs up both the evidence and the public interest in a prosecution and may decide not to proceed with the charge for a number of reasons. For instance, a prosecutor may decide not to proceed due to:

• the age or illness of the youth
• the youth's willingness to give evidence against someone else
• the fact that the relevant law is unpopular, controversial or obsolete
• the fact that the breach of the law was only technical or trivial.

A youth charged with an offence or their legal representative can write to the prosecutor seeking they reconsider their decision to prosecute a particular matter. This is referred to as public interest representations.

Representations to the Commissioner of Police in relation to Youth Diversion

The youth’s lawyer can send representations to NT Police seeking that the youth be accepted into youth diversion, even though youth’s whereabouts is unknown, the alleged offence is a prescribed offence or the youth has other history that makes diversion an unsuitable option [YJA s 39(4)].

After sending these representations, the youth’s lawyer should seek the matter be listed for a further mention pending the response to the representations (in Darwin the Youth Diversion list held fortnightly on a Tuesday).

Court Process for matters that can be dealt with in Youth Justice Court

First mention

The first time the matter comes before the Court is called the first mention.

Before the matter is mentioned in Court, the youth should know what the charge is and what the Police say the facts are. The youth’s lawyer should receive from the prosecutor the complaint or information containing their charges, the statement of facts and all the evidence and other documents (such as a victim impact statement) the police have access to.

Youths should be given enough particulars to adequately defend themselves. The date, time and place of the alleged offence, details of the offence and the section of the Act that creates the offence, should be provided. 'Further and better particulars', such as the conduct that police claim to be proof of the offence, may have to be asked for in writing, by the youth's lawyer.

When the matter is mentioned in Court, the youth can:

• Apply for bail if they are remanded in custody
• Apply to vary the conditions of their bail if they are on bail
• Plea guilty. If the defendant enters a plea of guilty they might receive their sentence that day or the Court might adjourn the matter to a future date
• Seek an adjournment. If the youth wishes to contest the matter, send representations, or await receipt of further evidence to decide how to proceed with the matter, the matter will be adjourned to a future date for a directions hearing.
• Seek the Court refer the matter for Youth Diversion. If granted, the future listing will be for youth diversion mention.

The youth is not required to enter a plea of guilty or not guilty at the first mention.

A youth who is in custody and is not granted bail is remanded in custody either to appear on the future date (their attendance in person or via audiovisual link will be arranged by Corrections) or they may be excused from attending on the next occasion if they are legally represented.

Subsequent mention

The matters are often also listed for subsequent mention. This mention can be for different purposes, such as:

• An update on the status of representations
• An update on the a report ordered as to the mental condition of a youth pursuant to s 67 (in Darwin on Tuesdays)
• A case management inquiry to provide an update on the status of a matter in advance of a contested hearing

Plea of guilty

Before pleading guilty, a youth should attain legal advice. A youth 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.

To enter a plea of guilty, the prosecutor will read the youth the charge and ask whether they are ‘guilty’ or ‘not guilty’. Sometimes in Youth Justice Court this is referred to as ‘true story’ or ‘lie story’.

The judge first calls on the prosecutor to read the facts of the case. These facts are also called the statement of facts or police precis . After the facts are read out, the youth’s lawyer must tell the judge whether the youth agrees with them.

The prosecutor also informs the judge of any prior convictions recorded against the youth. The youth’s lawyer must tell the judge whether the youth admits the criminal history. Often, the prosecution will also seek to tender a victim impact statement.

The judge will then call on the youth’s lawyer to present any facts in mitigation (lessening) of penalty. The youth’s lawyer can, with the prosecutor's consent, hand the judge written references or other support documents providing evidence of the defendant's character, circumstances or remorse. The youth’s lawyer addresses the judge on what is the most appropriate penalty. The prosecutor will also address the judge on sentencing principles and what the prosecution deems is the most appropriate penalty.

Community Corrections, may be asked to prepare a supervision assessment or pre-sentence report for the court. A supervision assessment explains to the judge whether Community Corrections deem the youth to be a person that is suitable for their supervision on a supervised order (such as a community corrections order, intensive community corrections order or a suspended sentence). A pre-sentence report provides information about the youth's background. It is requested by the court to find out why the offender committed the crime or, in some cases, to help determine an appropriate sentence. If a supervision assessment is ordered, the matter is usually adjourned for at least three days. If a pre-sentence report has been ordered, the case is usually adjourned for four to six weeks to allow it to be prepared. Similarly, Community Corrections may be asked to prepare a home detention report, and/or a community service work report as the case may demand.

The judge then makes a decision and imposes a penalty. When sentencing a youth, the Youth Justice Court must have regard to the youth specific principles. Please refer to Youth: Sentencing.

Contested Hearings (not guilty pleas)

Contested hearings for youth matters are held in the Youth Justice Court. Procedurally, the process is the same as contested hearings for adults. Please refer to contested hearings (not guilty pleas).

Any requirements pursuant to Local Court (Criminal Procedure) Act 1928, such as the requirement to give written notice, do not apply to youth matters.

Where the question of whether the presumption of doli incapax can be rebutted is an issue in the hearing, parties are required to file a ‘doli incapax information form’ six weeks after the first mention. A copy for the form is available on the NT Local Court website.

Court Process for matters that should be dealt with in Supreme Court

First mention

The first time the matter comes before the Court is called the first mention.

Before the matter is mentioned in Court, the youth should know what the charge is and what the Police say the facts are. The youth’s lawyer should receive from the prosecutor the complaint or information containing their charges, the statement of facts and all the evidence and other documents (such as a victim impact statement) the police have access to.

Youths should be given enough particulars to adequately defend themselves. The date, time and place of the alleged offence, details of the offence and the section of the Act that creates the offence, should be provided. 'Further and better particulars', such as the conduct that police claim to be proof of the offence, may have to be asked for in writing, by the youth's lawyer.

When the matter is mentioned in Court, the youth can:

• Apply for bail if they are remanded in custody
• Apply to vary the conditions of their bail if they are on bail

The youth is not required to enter a plea of guilty or not guilty at the first mention.

Matters that must be finalised in the Supreme Court are all provided a listing for preliminary examination mention at the first mention. Ordinarily, the Court orders the prosecution serves the committal brief within six weeks and sets a date for the preliminary examination mention in eight weeks' time (At the Darwin Youth Justice Court, PEM mentions are listed on Monday afternoons).

Preliminary examination

A preliminary examination is a hearing at which the Judge decides whether there is enough evidence to justify sending the matter to the Supreme Court for trial or guilty plea.

The preliminary examination process is the same for youth as it is for adults, apart from the fact it is conducted in the Youth Justice Court. Please refer to preliminary examination process.

The issue of doli incapax is an issue for the Court to consider when determining whether there is sufficient evidence to commit the defendant to the Supreme Court [RP v Ellis & Anor [2011] NSWSC 442].

Ex officio indictments

The process in relation to ex officio indictments is the same for youth as it is for adults. Please refer to ex officio indictments.

Criminal call over mention

The first mention of a matter in the Supreme Court will be at a criminal call over mention. The process is the same for youth as it is for adults. Please refer to criminal call over mention.

Plea of guilty

The process in relation to Supreme Court pleas of guilty is the same for youth as it is for adults. Please refer to plea of guilty.

When sentencing a youth, the Court must have regard to the youth specific principles. Please refer to Youth: Sentencing.

Trial process

In the Supreme Court the judge functions as the arbiter of law and the jury decides the facts. The jury is a group of 12 people selected form the public on a random basis

Doli incapax can be an issue at trial.

The process in relation to Supreme Court trials is the same for youth as it is for adults. Please refer to trial process.

Appeals

Appeal against Youth Justice Court Decision

Appeal against Youth Justice Court Decision

A youth 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 ). The process of appealing a Youth Justice Court decision is the same as appealing a Local Court decision, apart from the fact the relevant provisions can be found at Part 7 of the Youth Justice Act. Please refer to appeal against Local Court decision,

Additionally, a Youth Justice Court sentence may be reconsidered or reviewed.

Reconsideration of sentence

A youth can apply to the Court for reconsideration of their sentence at any time [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 youth 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 youth 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.

Review of sentencing orders

If a youth will no longer be able to comply with their sentence or is not complying with their sentence, the youth, the Prosecution or the Department of Corrections can apply to the Court for a review of sentence [YJA s 142].

All parties are notified of an application for reconsideration and a hearing date is set in the Youth Justice Court.

Appeals against a Supreme Court sentence

The process in relation to appeals against Supreme Court sentence is the same for youth as it is for adults. Please refer to appeals against a Supreme Court sentence.

Youth: Bail

Bail is an agreement made between the court or police and a person charged with an offence (the defendant). The court or the police agree to release the defendant if they agree to come back to court on a certain date and attend court proceedings until their case is concluded. The Bail Act 1982 (NT) (‘BA’) is the act relevant to bail for both youth and adults in the NT. For further information, please refer to what is bail.

Bail presumptions

The presumptions for and against bail are the same for youth as they are for adults. Please refer to bail presumptions.

Bail Criteria

The considering whether to grant bail to a youth, criteria that applies to adults also applies to youth. Please refer to criteria for granting bail.

In addition to those considerations, there are additional youth specific criteria that the Court must take into consideration in bail applications for youth.

The criteria are:

• the need to strengthen and preserve the relationship between the youth and the youth's family [BA s 24A(2)(b)]
• the desirability of allowing the living arrangements of the child to continue without interruption or disturbance [BA s 24A(2)(c)]
• the desirability of allowing the education, training or employment of the youth to continue without interruption or disturbance [BA s 24A(2)(d)]
• the likely sentence should the youth be found guilty of the offence [BA s 24A(2)(f)]
• the youth's prior exposure to, experience of and reaction to trauma [BA s 24A(2)(g)]
• the cognitive capacity, health and developmental needs of the youth [BA s 24A(2)(h)]
• if the youth is an Aboriginal person – any issues that arise due to the youth's Aboriginality, including their cultural background and ties [BA s 24A(2)(i)]

Bail cannot be refused solely because the youth does not have accommodation [s 24A(4)].

The Court must take into account any information provided by a bail support service [YJA s 24A(3)]. A bail support service is a services provided to assist a youth to comply with their bail undertaking and any condition [Bail Act Regulations 1983 (NT) (‘BR’) s 2B].

Conditions of bail

The police officer or Court, when granting bail, is required to impose conditions that are necessary to minimise the risks to the safety and welfare of others that may result from granting the person bail [BA s 28(1)]. Any conditions imposed should be proportionate to the risks [BA s 28(2)].

The conditions that the Court can impose on youth are the same as the Court can impose on adults. Please refer to conditions of bail. However, the Court must consider the need to make sure the conditions are not more onerous than necessary, the age, health, maturity and circumstances of the youth and the youth’s capacity to comply with conditions [YJA s 28(2A)].

The NT has supported bail accommodation providers, such as First Steps in Darwin. Youth can apply to reside at the facility if on bail and seek the Court grant bail for them to reside at the facility.

Review of bail decisions

The same provisions in relation to review of a bail decision that apply to adults applies to youth. Please refer to review of bail decisions.

Termination of bail

The same provisions in relation to termination of bail that apply to adults applies to youth. Please refer to termination of bail.

Youth: Sentencing

Which legislation applies?

Youth Court

The Youth Justice Court must deal with all charges in accordance with the YJA [YJA s 52].

Supreme Court

If a youth is found guilty before the Supreme Court of an offence, the Supreme Court may:

• Exercise the powers of the YJA (in addition to its powers including this found in the Sentencing Act 1995)
• Order the youth be imprisoned for a period not exceeding the maximum period of imprisonment for an adult
• Remit the case to the Youth Justice Court [YJA s 82].

For further discussion of this issue, please refer to AK v The Queen [2021] NTCCA 4 at [32] to [36] or The Queen v Gurruwiwi [2008] NTCCA 2; (2008) 22 NTLR 68.

Factors the Judge considers when sentencing

If sentencing under the Youth Justice Act

If sentencing pursuant to the YJA, the Court must consider the following:

• the Court must have primary regard to the impact of the offence on each victim [YJA s 81(1)(a)]
• the general principles of sentencing, apart from when the YJA modifies them. Please refer to purposes of sentencing.
• the general principles of youth justice [YJA s 81(1)(b)(ii)]
• the nature and seriousness of the offence [YJA s 81(2)(a)]
• the youth’s prior offending history (if any) [YJA s 81(2)(b)]
• the youth’s cultural background [YJA s 81(2)(c)]
• the youth’s age and maturity [YJA s 81(2)(d)]
• existing orders still applying to the youth, and any consequences of non-compliance with those orders [YJA s 81(2)(e)]
• the extent to which any person was affected as a victim of the offence [YJA s 81(2)(f)]
• that the sentence must be proportionate to the seriousness of the offence [YJA s 81(3)]
• the fact that rehabilitation may be supported by the participation of the youth’s family or opportunities for education and employment. The absence of family involvement or rehabilitative opportunities must not lead to a more severe sentence [YJA s 81(4)]
• whether the youth has taken steps to make amends with any victim [YJA s 81(5)]

If the Court is considering imposing a sentence of detention or imprisonment, the Court must require a pre-sentence report unless it is satisfied it has the information necessary to determine the appropriate sentence [YJA s 69].

If sentencing youth generally

Regardless of which Act is used, the youth of an offender should be a primary consideration on sentence and that in the case of a youthful offender rehabilitation is usually to be given more weight than general deterrence [R v Mills [1998] 4 VR 235 at 241, TM v The Queen [2017] NTCCA 3].

Sentencing process

The sentencing process for youth is the same as it is for adults. Please refer to sentencing process.

Types of penalties

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 youth 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 youth must agree to be of good behaviour for a specified amount of time. The bond may include certain conditions, such as requiring the youth live in a certain place or avoid contact with certain people or report and may be imposed for up to two years
• impose a fine
• impose a community work order: the youth may be ordered to perform up to 480 hours of unpaid community work in an approved project
• detention and imprisonment: this may be partially or wholly suspended, or subject to a non-parole period
• 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 Department of Corrections. 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
• make any other order in respect of the youth it could were the youth an adult offender. Please refer to types of penalties.

In addition to the above orders the court may also disqualify a youth from holding or obtaining a drivers licence [YJA s 88].

A youth 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.

Generally, a youth in detention must be transferred to an adult jail on their 18th birthday

Mandatory Sentencing

The mandatory sentencing provisions that apply to assault emergency worker and assault police offences, sexual offences and aggravated property offences do not apply if sentencing a youth pursuant to the YJA.

If the Supreme Court finds a youth guilty of murder, it is not required to impose the mandatory sentence of life imprisonment (that applies to adults) if it considers a shorter period of imprisonment appropriate [YJA s 82].

Breach of an order

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

The Judge can opt to take no action, to vary the order, to resentence, or, if sentenced to imprisonment that is suspended, order the youth to serve all or part of the time held in suspense [YJA ss 96, 110, 121, 124].

Reports

The Youth Justice Court is empowered to order the following reports:

• A bail supervision assessment: Assessing the youth’s suitability for electronic monitoring on bail [BA s 28(3A)]
• A supervision assessment: Assessing the youth’s suitability for supervision by the Department of Corrections as past of an order following sentence [YJA s7 1(1)(a)]
• A pre-sentence report [s 69]
• A report as to the youth’s mental condition: This can often include a multidisciplinary psychological or psychiatric assessment [s 67].
• A report from the Department of Education pertaining to the youth’s schooling [YJA s 68]
• An institutional report detailing the youth’s circumstances in custody [YJA s 68]
• A pre-sentencing conference report: The Court may, when determining the appropriate sentence for a youth who has been found guilty of an offence, adjourn the proceedings and order the youth to participate in a pre-sentencing conference [YJA S 84].
• A report considering whether the youth is in need of care and protection: This can occur at any stage of the proceedings [YJA s 51].

Youth: Spent Convictions

A spent conviction is a criminal record the person is not required to disclose it and it cannot taken into account in some circumstances [Criminal Records (Spent Convictions) Act 1992 (NT) (‘CRSCA’) ss 11, 13]. Notably, spent convictions can be considered in subsequent legal proceedings [CRSCA s 15(f)].

A youth's criminal record only becomes a spent conviction:

• If they were not convicted, immediately upon the order finishing [CRSCA s 7]
• If they were convicted, after 5 years - provided they are not convicted of another offence punishable by imprisonment or serve any time of imprisonment in the time since and apply for the conviction to be spent [CRSCA s 6A].

Some convictions cannot be spent, such as those for sexual offences or offences where more than six months imprisonment is imposed [CRSCA ss 5, 6].

A criminal conviction can affect a youth 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 youth with a criminal record, especially if the conviction was for a dishonesty offence.

Youth: Investigation and Arrest

The rules that protect adults’ rights when it comes to investigation and arrest also apply to youth. Please refer to investigation and arrest. However, the following additional protections specifically apply to youth and provide them special rights and protections.

Explanations by Police Officers

Where a police officer is required to inform a youth 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, health, maturity, cultural background and English skills [YJA s15(1)]. If they appear to have insufficient language skills, reasonable efforts must be taken to obtain an interpreter [YJA s 15(2)]. Youth must also be informed of their ability to access legal advice and representation before being searched [YJA s 15(3)].

Interview

Police cannot interview a youth unless they believe on reasonable grounds that the person has committed an offence or been implicated in the commission of an offence that carries a maximum penalty of 12 months or more for an adult [YJA s 18].

Before interviewing a youth, an officer must:

• Inform the youth of their ability to obtain legal advice and representation,
• Provide the youth access to legal advice and representations in privacy
• Inform the youth of their ability to contact a friend, relative, responsible adult or other support person who must be present while the officer interview the youth [YJA ss18(1A)(1) This means, at least one 'support person' must be with the youth 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(3),(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.

Legal Aid NT and NAAJA both have helpline phone services for which the police have contact details. NAAJA’s custody notification service operates 24/7. A youth 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 youth 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 youth 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 youth will often admit to the commission of an offence even when they are unsure about their guilt. It is important that a youth fully understands, at all times, the subject of the interview.

A youth 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 youth 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 [YJA s 18]. In urgent situations the police must conduct the search, so far as practical, in a fashion that maintains the dignity of the youth [YJA ss 19(2)(3)]. 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 s 19(4)].

A female officer must search a female youth and a male officer must search a male youth [YJA s 20(1)]. If a police officer of the same gender as the youth is not available within a reasonable time, a person of the appropriate gender who is not a police officer may carry out the search under the direction of a police officer who must take the necessary measures to preserve the youth's privacy and dignity [YJA s 20(2)].

Forensic procedures

Strict rules govern the collection of identifying materials from young people. These rules are set out in Part 2, 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].

Part 2, 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 Local Court Judge [YJA ss 30(3(6)]] and either the youth is in custody, the youth has been charged, the youth has been summoned to appear or an authorised office has consented to proceedings being brought against the youth by summons [YJA s 30(1)]. If approval is granted, the samples must be taken by a medical practitioner or a dentist [YJA s 30(1)]. The youth concerned must be given the opportunity to have their own medical practitioner or dentist present when the intimate sample is taken [YJA s 30(11)]. Arrangements for this must be made unless it is impracticable to do so [YJA s 30(12)]. 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(10)].

The rules do not operate to prevent a doctor or dentist from examining and treating a youth in custody where the youth 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(1) 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 judge or a senior police officer [YJA s 31(2)]. A senior police officer can only authorise non-intimate procedures if they are satisfied the youth is over 14 years of age [YJA s 31(3)]. Written approval must be obtained though applications for that approval may be made over the telephone [YJA ss 31(6)(7)(8)]. The police are permitted to use reasonable force when carrying out non-intimate procedures [YJA s 11].

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 [YJA s 32(3)]. 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 [YJA S 32(1)]. 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 [YJA S 32(2)].

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. [YJA s 8(2)].

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 if either the youth is in custody, the youth has been charged, the youth has been summoned to appear or an authorised office has consented to proceedings being brought against the youth by summons [YJA s 33(1)], provided they are satisfied that the youth is 14 years of age or older [YJA s 33(2)]. If the youth is under 14, a Local Court Judge must approve the procedure before it is carried out [YJA s 33(3)]. Approval must be in writing (though the sample can be taken if verbal approval has been given over the phone) [YJA ss 33(6)(7)(8)] and the police are permitted to use reasonable force when carrying out an identifying procedure [YJA s 33(9)].