When Can Police ‘Caution’ a Young Person in New South Wales?

by Ugur Nedim & Sonia Hickey
Teen fight

The mother of a teenage girl who was subjected to an unprovoked attack by a group of teens has expressed disappointment the perpetrators were cautioned rather than charged by police. 

Savage attack

14-year old Amber Saied and a friend left Charleston Square shopping centre in Lake Macquarie on Thursday, 14 April 2022 after watching a movie. 

While walking through a nearby park, they were set upon by a group of teenage girls, one of whom was known to Amber.

The group dragged Amber over a fence, kicked and punched her multiple times in the head and body, before ripping a glucose monitor from her arm. 

Amber has type-1 diabetes – a serious condition caused by her body’s inability to make insulin which can mean her blood glucose (sugar) level becomes too high. Constant monitoring is an important way to manage this autoimmune disease. 

The assailants filmed the attack before uploading the footage to social media.

Amber was admitted to John Hunter hospital where she spent five days being treated for multiple injuries, including severe bruising, swelling, cuts and abrasions.

“They’ve punched me in every single bit of my body, they’ve kicked me in the head, they’ve kicked me in the face, punched me in the face, they’ve obviously pulled chunks out of my hair”, Amber told the media.

NSW Police confirmed that the young people who attacked Ms Saied, aged 13 and 14, attended the Belmont Police station with their guardians and were issued with cautions under the NSW Young Offenders Act. 

The Young Offenders Act 

In Australia, children as young as ten can be held criminally responsible. 

If they are between the ages of 10 and 14 years old, then for a case to proceed, the prosecution must prove that the young offenders knew what they were doing was seriously wrong. 

The Young Offenders Act was enacted in 1997 to recognise that juvenile offenders are different from adult offenders. 

It was established to provide police and the broader justice system with different options for dealing with young offenders, while still acknowledging the rights of victims of crime, and ensuring justice in line with community expectations.  

It recognises that teens and young people do not have fully developed cognitive functions, can be heavily influenced by their peers, aren’t always able to express emotions such as frustration, or anger in a reasonable and rational way, sometimes make rash and reckless decisions ‘in-the-moment’ without thinking about the consequences. 

Most importantly, the Act is designed to ensure that young people are diverted, where possible, from the courts and from incarceration, and given the chance to rehabilitate and turn their lives around. The Act therefore provides alternative forms of intervention and punishment for young offenders who break the law.  

Objectives of the Act 

The stated objectives of the Young Offenders Act are to:

  1. Establish a scheme that provides an alternative process to court proceedings for dealing with children who commit certain offences through the use of youth justice conferences, cautions and warnings, 
  2. Establish a scheme for the purpose of providing an efficient and direct response to the commission by children of certain offences, 
  3. Establish and use youth justice conferences to deal with alleged offenders in a way that:
  • enables a community based negotiated response to offences involving all the affected parties, 
  • emphasises restitution by the offender and the acceptance of responsibility by the offender for his or her behaviour, and
  • meets the needs of victims and offenders, and
  1. Address the over representation of Aboriginal and Torres Strait Islander children in the criminal justice system through the use of youth justice conferences, cautions and warnings.

When can police caution a young person rather than send them to court?

Part 4, Division 1 of the Act (sections 18 to 30) sets out the circumstances in which a formal caution can be issued to a young person by a police officer, as well as the relevant considerations when deciding whether to issue a caution rather than charge him or her with a criminal offence and send them to court.

A caution is considered to be more serious than a ‘warning’, which can only be given for summary offences (those which must be finalised in a lower court such as the Local Court when it comes to adults) and do not involve violence. The requirements for warnings are contained in Part 3 of the Act.

Offences for which a caution may be given

Section 18 makes clear that a caution can be given for offences covered by the Act, except for graffiti offences.

Section 8 provides that the Act covers summary offences and most indictable offences (those which can be referred to a higher court such as the District Court) but which the prosecution or defence can choose to keep in a lower court.

This excludes the most serious category of offences, which are known as ‘strictly indictable offences’ and can only be finalised in a higher court.

The section also excludes a list of specific offences, including many traffic offences, sexual offences, drug offences and offences resulting in death.

Conditions for giving a caution

Section 19 sets out that a caution may be given if:

  1. the offence is one for which a caution may be given, 
  2. the child admits the offence, 
  3. the child consents to the giving of the caution, and
  4. the child is entitled to be given a caution.

Matters considered when determining whether a caution is appropriate

Section 20 provides that a young person entitled to a caution if police determine that the matter is not appropriate for a warning or the offence is one for which a warning may not be given, unless it is in the interests of justice to deal with him or her in another way; such as by issuing a court attendance notice and sending them to court.

The matters when considering if a caution is appropriate include:

  1. the seriousness of the offence,
  2. the degree of violence involved in the offence,
  3. the harm caused to any victim, and
  4. the number and nature of any offences committed by the child and the number of times the child has been dealt with under the Act.

The young person is not precluded from receiving a caution if they have previously been issued with a warning or caution, or previously been charged with and/or convicted of an offence.

Formal and practical requirements

The remaining sections of the part contain a number of formal requirements, including that:

  • the caution must be explained to the young person (section 22), 
  • the young person must be provided with a written notice of the caution (section 24), 
  • that an officer may obtain a written statement from the alleged victim before making a determination regarding whether to give a caution (section 24A), 
  • if practicable, the formal written caution must be provided to the young person at a police station not less than 10 and not more than 21 days after notice of that caution is given (section 26), 
  • the formal written caution can be provided by police officer or specialist youth officer authorised in writing by the Commissioner of Police (section 27), 
  • the young person may be accompanied by an appropriate person – such as an adult of his or her choosing – when the caution is given (section 28),
  • the officer must take steps to ensure the young person understands the nature, content and effect of the caution (section 29), and
  • the caution must contain certain details, including those of the young person, the police officer issuing it, the alleged offence and time, date, nature, purpose and effect of the caution.

Court election

A young person may elect (choose) to have the matter dealt with by a court rather than receive a caution (section 25).

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Authors

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Autumn 2021.

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