Diversionary options for young people in juvenile justice
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What are diversionary options?
Ayoung person who gets into trouble with the law should be diverted from the criminal justice system if this is appropriate. There are four diversionary options available:
- taking no action
- cautioning
- youth justice conferencing
- drug diversion
The police must consider these options instead of court. In deciding what to do the police must think about:
- the offence you have committed
- your previous criminal history
- whether you have had the benefit of a diversionary option in the past
What does 'taking no action' mean?
The police might take no action for a first or minor offence. It is like an informal cautioning.
What is a caution?
A caution is a formal warning given by a police officer instead of charging you. Once a caution is given the matter is finished. A caution is more likely to be used for minor offences.
The cautioning process must include:
- you telling the police that you did it (or admitting your guilt) and agreeing to being cautioned
- a support person being present
- you getting a notice that you have been cautioned.
If you are Aboriginal or Torres Strait Islander the police must consider whether a respected person from your own community can give the caution.
A caution may involve writing an apology to the victim.
In some circumstances cautions can be disclosed in court if you are charged with another offence:
- If you go before a court and your lawyer thinks that you should have got a caution instead of being brought before a court then they can ask the court to have the charge dismissed. If the court agrees the court may dismiss the charge and administer a caution or direct that a caution be given to you. In deciding what to do the court can consider whether you have received a caution in the past.
- If you are aged between 10-13 your caution history may also be used by the prosecutor (who might be a police officer or a lawyer) to prove that at the time of the crime you knew or should have known what you were doing was wrong.
What is youth justice conferencing?
A youth justice conference is a meeting between you and the people who were affected by the offence you committed.
The purpose of a youth justice conference is to:
- make sure you understand that you are responsible for what you did
- give you an idea of the effect it had on other people
- give you a chance to make amends.
Youth justice conferences are organised by the Department of Communities who provide an independent mediator called a convenor to conduct the conference.
What is the difference between a police and court referral?
The police can refer you to a youth justice conference if you have admitted your guilt (or told them that you did it).
The court can refer you to a youth justice conference if you have admitted guilt or been found guilty.
The court can then make either:
- an indefinite referral to a conference which means the conference is instead of a court sentence and you don't have to return to court unless the conference doesn't work or you break the agreement reached
- a referral to a conference before a sentence which means that when the conference is finalised and an agreement reached you will still need to go back to court and the court will consider whether anything more should happen to you taking into account the fact that you participated in a conference.
Do I have to agree to participate in a youth justice conference?
Yes, you have to agree to be involved otherwise the police or the court will have to consider another way of dealing with you.
The victim of the crime will be asked whether they would like to participate but the conference can still go ahead if they don't want to take part.
How long will a conference take and what will I be asked to do?
They usually take under two hours.
A youth justice conference agreement might ask you to:
- apologise
- do something to make the victim feel safer
- replace damaged property
- agree to accept help to stop committing offences
- do voluntary work for the community or an organisation the victim chooses.
This agreement is in writing. The agreement reached should not provide for a punishment that is harsher than if you had been sentenced by a court. Particularly where you are being asked to pay money and you have a limited capacity to pay or you are being asked to do community service that is above what you would be required to do by a court because of your age.
What if the youth justice conference doesn't work out?
If:
- you don't turn up to the conference,
- no agreement is reached, or
- you do not do what was agreed to be your punishment,
then the police or the court will have to consider what happens next.
They could try another conference or send you to court.
Does a conference agreement become part of my criminal history?
If you are aged between 10-13 your conferencing history may be used by the prosecutor (who might be a police officer or a lawyer) to prove that at the time of the crime you knew or should have known what you were doing was wrong.
It can also be considered by the court in deciding whether to make another referral to a conference.
What is the police diversion program for a minor drugs offence?
This program offers you the chance to attend the Drug Diversion Assessment Program (DDAP) rather than being charged and going to court for a minor drug offence involving cannabis.
A minor drugs offence involving cannabis is the possession of fifty (50) grams of cannabis or less, or possession of a thing that is used for, or has been used for smoking cannabis.
It does not involve offences for production, supply or trafficking of cannabis. It does not involve offences for any other type of drug, however an offender charged with other minor drug charges may be eligible to receive diversion under the Court Diversion Program.
The police officer investigating the offence will determine whether you are eligible for DDAP and if you are will offer you the chance to attend the DDAP. If you agree, the officer will make an appointment with the program provider. You must sign a form accepting the offer and agreeing to attend at a specific time and date and place.
You are eligible for the program if you meet all of the following criteria:
- you are arrested for, or questioned about, a minor drugs offence involving cannabis
- you have not committed another indictable offence in circumstances related to the minor drugs offence
- you have not previously been convicted of an offence involving violence against another person
- you have admitted committing the offence during an electronically recorded interview
- you have not been offered diversion in the past.
You may still be offered diversion even if you have previously been cautioned.
How does the program work?
If you attend a DDAP you will not be charged with a criminal offence and you will not have a criminal record for a minor drugs offence. The DDAP is a combined assessment, education and counselling session. The DDAP provider will work with you to develop a personal plan to help stop using cannabis. A family member or friend may go with you to the DDAP.
The opportunity to attend a DDAP will only be offered once. Ifyou reject an offer or fail to attend at the DDAP as arranged, no further offer will be made, however diversion may still be considered by a court under the Court Diversion Program.
Failure to attend the DDAP is an offence. You may be charged with contravening a direction or requirement of a police officer. You will not be charged with the original minor drugs offence if they fail to attend the DDAP.
What is the court diversion program for a minor drugs offence?
This program offers you the chance to attend a Drug Diversion Assessment and Education Session and avoid having a conviction recorded for minor drugs offence when you have appeared in the Children's Court.
You are eligible for the program if you:
- are charged with an eligible drugs offence
- appear before a Drug Diversion Court, or Children's Court
- admit your guilt
- have not been convicted of or currently facing charges of a sexual nature or a drug offence dealt with in the district or supreme Court.
If you have been offered two previous diversions, including a diversion under the Police Diversion Program you will not be eligible for a further diversion.
What is a minor drugs offence?
An eligible drug offence is a charge of possession of a minor amount of drugs. The drugs must also be for personal use.
Examples of common minor drugs are:
- cannabis - 50g
- heroin - 1g
- methadone - 1g
- amphetamine - 1g
- cocaine - 1 g
- LSD - 3 tabs.
Any substance mixed in with the drug is included in the amount.
How does the program work?
If you are under 17 you attend at the Children's Court or if you are older then you go to a Drug Diversion Court at the Magistrates Court. A Court Diversion Officer talks with you. The matter is heard in court and the Court Diversion Officer tells the court that you qualify for the program. I
f you are under 17 the court will send you away to give you a chance to attend the program, otherwise the magistrate may place you on a recognisance order with a condition of attending a drug assessment and education session. If you complete the program, the order ends and no conviction is recorded. If you do not complete the program, you breach the recognisance order and are returned to court to be sentenced for the original offence.
The Drug Assessment and Education Session starts with a session with a health service provider to prepare a personal plan about your drug taking behaviour. Treatment is voluntary and not part of the recognisance order. The session is strictly confidential. A family member or friend may go with you to the Drug Assessment and Education Session.