Young Offenders Act and The Protected Admissions Scheme

17 December 2022 in Criminal Law

Young offenders in NSW can now confess to minor offences and avoid conviction in a new program created to close a loophole in the cautioning system.

The Young Offenders Act 1997 (NSW) sets out the process of the Protected Admissions Scheme.  The scheme protects young offenders who make an admission under the scheme for an offence covered by the scheme.  However, there are still some risks with the process as described below.

A child is defined in section 3 of the Children (Criminal Proceedings) Act 1987 (NSW) as any person under the age of 18 years.  Children charged with summary (minor) offences are eligible to have their legal proceedings occur in a manner separate to the traditional court system for adults and have access to, for instance, the Children’s Court.

A young person aged 10 years or older may be arrested and charged with a criminal offence.  In New South Wales it is presumed that a child under the age of 10 years cannot  be guilty of a crime pursuant to section 5 of the Children (Criminal Proceedings) Act 1987 (NSW).  The age of criminal responsibility is 10 years in all states and territories in Australia.

At common law the principle of doli incapax presumes that a child between the ages of 10 and 14 years (inclusive) does not possess the necessary mens rea (or mental elements of intention) to be guilty of a criminal offence.  This is a rebuttable presumption that was discussed in the High Court case of RP v The Queen [2016] HCA 53.

It is interesting that the Law Council of Australia in its paper “Council of Attorneys-General – Age of Criminal Responsibility Working Group Review“, 2 March 2020, page 5, has stated that. “The current low minimum age of criminal responsibility is out of step with international human rights standards and the most recent medical evidence on child cognitive development”.

The Protected Admissions Scheme

The new scheme, known as the ‘Protected Admissions Scheme’, guarantees that first-time young offenders who make an admission of guilt for a minor matter, as defined in the Young Offenders Act 1997 (NSW) will not face further conviction and will be released with a warning or formal caution by police or be referred to Youth Justice Conferencing. The scheme is the result of collaboration between the police, Legal Aid NSW, the Department of Police and Justice and the Aboriginal Legal Service.

The young offender must first admit to the offence before they can be dealt with by caution. If the young person has decided to not admit to the offence or has exercised their right to silence, the police may offer them the opportunity to make a protected admission. The police may decide to do this if the police believe that the offence could be dealt with by giving a warning, caution or arranging a youth justice conference.

Offences that can be dealt with under the Young Offenders Act 1997 (NSW) through warning, caution or conference include:

• Damaging property (not graffiti)
• Theft
• Break and enter (if what was stolen is worth $60,000 or less)
• Common assault
• Possession of very small quantities of a prohibited drug.

Crimes that are not able to be dealt with under the Young Offenders Act 1997 (NSW) through warning, caution or conference include:

• Traffic
• Sexual offences
• Stalking or intimidation
• Domestic violence
• Most drug offences except for possession of very small quantities.

The process

During the police interview, the young offender will admit their part in the offence. The police may be satisfied that the protected admission form signed by the young offender, or their legal representative is sufficient to offer a warning or caution.

A formal caution may be given where the conditions of section 19 of the Young Offenders Act are satisfied.  The conditions are:

• The offence is one for which a caution may be given, and
• The child admits the offence, and
• The child consents to the giving of the caution, and
• The child is entitled to be given a caution.

Some considerations police make when giving a caution are set out in section 20 of the Young Offenders Act and include:

• The seriousness of the offence
• The degree of violence involved in the offence
• The harm caused to any victim
• The number and types of offences previously committed by the young person
• Any other matter the investigating officer thinks is appropriate in the circumstances

If a young offender commits numerous offences on the same occasion, the young person may receive a caution covering all of the offences. The young offender can receive a maximum of three (3) cautions.

Before the interview, the police will give the young person a document that explains the offences the young person will be questioned about. Under Section 67 of the Young Offenders Act,  “Any statement, confession, admission or information made or given by a child during the giving of a caution or a conference under this Act is not to be admitted in evidence in any subsequent criminal or civil proceedings.”  Police will give the young person a paper that contains this in writing.

However, it is important to note that there is some risk that any admission made about an offence that is not covered by the Young Offenders Act 1997 (NSW) or any other offender cannot be used as evidence but may be used in any other way including in any other or subsequent investigation. It is also important to be aware that section 25 of the Young Offenders Act provides that, “An investigating officer may, at any time before the caution is given, determine that it is not in the interests of justice for the matter to be dealt with by way of caution …”.

The Young Offenders Act provides the benefit of enabling young offenders to be diverted away from the court system and avoid any criminal conviction, as was intended.  However, there are some risks associated with the protected admissions scheme.  It is important to obtain legal advice and have a lawyer present  to ensure that the young person knows their rights and does not face any additional, unforeseen consequences.

If the young offender does not agree to make a protected admission or exercises the young offender’s right to silence, police may start criminal proceedings against the young offender. If the matter is referred to the Children’s Court the Court may still dispense with the matter by way of a caution, even where the young offender has exercised the young offender’s right to silence.  If the young offender does accept the caution on offer, it’s important they attend at the allocated time, otherwise, the process will start over and they may be charged.

The Children’s Court will not record a conviction for children under the age of 16 years.

How can BSM help?

The criminal lawyers at Brander Smith McKnight are highly experienced in relation to  offences committed by minors and can help young offenders understand their rights, represent them in a police interview, caution or conference and protect them from onerous charges. We can help can take the stress and confusion out of what can be a frightening situation.