Last updated 29 August 2016
The Youth Justice Act 1992 (Qld) (Youth Justice Act) does not describe when or for what offences a caution should be given. A police officer can only administer a caution if the child:
- admits the offence and
- consents to being cautioned (s 16 Youth Justice Act).
If practicable, the caution must be given in the presence of:
- a parent
- another adult chosen by the parent or the child.
If the child is a member of an Aboriginal or Torres Strait Islander community, the police officer can request that the caution be administered by a respected elder of the relevant community (s 17 Youth Justice Act).
The police officer administering or requesting the caution must:
- be authorised to administer cautions or do so in the presence of an officer who is authorised
- ensure that the child and the parent or adult attending with the child understand the purpose, nature and effect of the caution.
In practice, a caution is most often used for first-time offenders or, if more than once, generally for minor offences. It generally involves a meeting between police, the child and the parent or adult chosen by the child where:
- the child’s behaviour is considered and why that is an offence
- the child may apologise to the victim if the child and victim are willing to participate in this
- the child receives an admonishment from the police officer
- a notice of caution is given to the child.
The Childrens Court can dismiss a charge brought before it, on application of a child defendant, if the court considers the child should have been cautioned or no action should have been taken (s 21 Youth Justice Act).
A caution does not form part of the child’s criminal history and is not generally admissible in subsequent court proceedings against that person either as a child or an adult (s 15 Youth Justice Act). The prosecution can seek to rely on prior cautions:
- for a child under 14 to rebut the presumption that the child did not know what they did was wrong (s 147 Youth Justice Act)
- in relation to decisions about bail
- where there is a submission by a child defendant that they should have been cautioned for the matter for which they are in court.
Youth justice conferencing
The Youth Justice Act also does not describe when and for what offences a conference would be appropriate. A police officer may refer an offence for a conference if the child admits committing the offence and the police officer considers:
- a caution is inappropriate
- a conference would be more appropriate than prosecution
- a convenor will be available for the conference (s 22 Youth Justice Act)
- the nature of the offence
- the harm suffered by anyone because of the offence
- whether the interests of the community and the child would be served by having the offence considered or dealt with at a conference (s 30(5) Youth Justice Act).
The conference is a meeting organised by an accredited conference convenor. Those entitled to be present are:
- the child and at the child’s request:
- their lawyer
- an adult member of the family
- another nominated adult
- the child’s parents
- the convenor and:
- a police officer
- any other person chosen by the convenor to assist
- the victim and at the victim’s request:
- their lawyer
- a member of their family
- a support person (s 34 Youth Justice Act).
A victim is entitled to attend but does not have to consent to, or participate personally, in the conference.
The conference process involves:
- a discussion of the offence
- the impact and consequences for those affected
- ways in which the child can repair the damage or harm caused to the victim.
If successful, there can be an agreement by the child to do something designed to redress their offending behaviour and to assist the child to take responsibility for their actions. This could include:
- making an apology to the victim, orally or in writing
- performance of voluntary or community work
- repair of or payment for any damage caused.
The convenor must ensure that the agreement is not unreasonable or more onerous than if a court had dealt with the matter.
If the conference is successful the matter is ended and the child cannot be prosecuted. It does not form part of the child’s criminal history. However, police will consider previous cautions or conferences when deciding how to proceed if a child appears to be involved in any future offending.
If the conference is not successful or the child does not comply with the agreement made at the conference, the police officer has the same options as to how to proceed with the offence as they did prior to the matter going to a conference. The police officer must consider the child’s participation in the conference and anything the child has done to comply with the agreement in deciding what to do.
Police drug diversion program
The police drug diversion program is provided for under s 379 of the Police Powers and Responsibilities Act 2000 (Qld) (PPR Act) and generally consists of a drug assessment, and education and counselling session that lasts up to two hours. Children are eligible for the session, including children who have previously been cautioned for a minor drug offence.
Graffiti removal program
If a child is arrested for, or is questioned by a police officer about a graffiti offence, the police officer may, at any time before the child goes to court about the graffiti offence, offer the child the opportunity to attend a graffiti removal program instead of going to court (s 379A PPR Act). The child must:
- admit having committed the offence during an electronically recorded interview
- have been at least 12 years of age at the time of the offence.
Police then directly refer the child to a graffiti removal program for two hours. If the child completes the program, that is the end of the matter. Otherwise, police can take further action including going to court.