Updates and background for this project (Digest)
6. Cautions
INTRODUCTION
6.1 Section 18 of the Young Offenders Act 1997 (NSW) (“YOA”) enables, where appropriate, a young offender to be cautioned, rather than sentenced, in respect of an offence covered by the Act. The provisions regulating the giving of cautions are contained in Part 4 of the YOA.
6.2 A caution can be administered by a police officer or specialist youth officer,1 a respected member of the community at the request of any such officer, if appropriate2 or by the Court.3 In addition, the Director of Public Prosecutions (“DPP”) may refer a young offender to an authorised police officer or specialist youth officer for a caution.4
6.3 The provision for a respected member of the community to administer a caution in appropriate circumstances could, for example, be utilised by a respected member of the Aboriginal community if the child is a member of that community. In 2002, the NSW Police, Operational Policy and Programs Unit implemented the Cautioning Aboriginal Young Persons Protocol, which is a program that trains Aboriginal people to give cautions to Aboriginal young people on behalf of police.
6.4 If a court is giving a caution, it is only necessary that the offence is one for which a caution may be given and the young offender admits the offence, but not that he or she consents to being cautioned.5 Otherwise, a caution can only be given if the young offender: has admitted the offence; consents to being cautioned; and is entitled to be cautioned.6 A young offender is entitled to be dealt with by caution if the investigating official determines that the matter is not appropriate for a warning or the offence is one for which a warning may not be given.7
6.5 On the other hand, the investigating official may determine that it is not in the interests of justice for the matter to be dealt with by giving a caution.8 The matters to be taken into account in reaching this decision include: the seriousness of the offence; the degree of violence involved; the harm caused to any victim; the number and nature of any offences committed by the young offender; the number of times he or she has been dealt with under the YOA; and any other matter considered appropriate by the official.9 However, the fact that the young offender has previously committed offences or been dealt with under the YOA does not preclude a caution,10 except in certain circumstances where he or she has already been cautioned three or more times.11 The investigating official also has the power to refer the matter to a specialist youth officer for a determination on whether the young offender should be cautioned or referred to conferencing.12
6.6 This chapter deals with three main issues that arise either from amendments to the legislation in 200213 or from submissions to the Commission, namely:
- the limits on the number of occasions on which a caution can be given;
- the accessibility of a court’s reasons for imposing a caution; and
- the relationship between cautioning under the YOA and the Children (Criminal Proceedings) Act 1987 (NSW).
LIMITS ON THE ENTITLEMENT TO A CAUTION
6.7 A young offender is not entitled to be dealt with by caution in relation to an offence if he or she has previously been cautioned on three or more occasions, whether by, or at the request of, a police officer or specialist youth officer under s 29, or by a court under s 31, and whether for offences of the same or a different kind.14
6.8 Prior to the 2002 amendments, there was no provision in the YOA limiting the number of cautions that may be given to a young person. These amendments have effectively increased the severity of the response to an offence that might otherwise be the subject of a further caution, by diverting the matter to conferencing or referring it to court proceedings.15
6.9 The debate on the Second Reading of the Young Offenders Amendment Bill 2002 referred to concerns expressed by the Children’s Legal Issues Committee of the NSW Law Society on the proposal to limit the number of cautions available to a young offender. The Committee argued that:
The imposing of a mandatory limitation on the number of cautions will inhibit the flexibility of the Young Offenders Act and may result in an inappropriate escalation to court of quite minor offences for which a conference is an inappropriate response, for example, offensive language charges or possession of a small quantity of marijuana.
Further, by limiting the ability of the Children’s Court to order a caution, costs to police, the court system and the community will be increased.
The number of times that a child has previously been dealt with under the Young Offenders Act for similar offences is a matter that a Specialist Youth Officer, the DPP and/or the court must take into account when determining whether it is appropriate to deal with a matter under the Act.
However, the Children’s Legal Issues Committee is not aware that there is a high incidence of children receiving multiple cautions or participating in multiple conferences. The Committee understands that data collated by the NSW Police Service indicates that 96% of children cautioned in the first three years of the operation of the Youth Offenders Act (sic) received no more than two cautions. Over the same period, only 1.4% of children participated in more than 2 conferences.16
6.10 The Commission shares these concerns. In particular, we are apprehensive that fettering the ability to caution conflicts with the aims of the YOA as set out in s 3, especially the aim of providing an efficient and direct response to the commission of certain offences by children.17 We are also concerned that limiting the number of cautions conflicts with the guiding principles of the YOA as set out in s 7, especially the principle that the least restrictive form of sanction is to be applied against a child who is alleged to have committed an offence.18
6.11 While the Commission does not presently support limiting the number of cautions that may be given to a young person under the YOA, we are not aware of any evidence so far that the amendment are causing injustice. The effects of the restriction should be monitored in order to establish whether or not it operates in a manner that is incompatible with the overall aims and principles of the YOA. That monitoring should be the responsibility of the Department of Juvenile Justice.
Recommendation 6.1
The application of s 20(7) of the Young Offenders Act 1997 (NSW), which limits the number of times that a young offender is entitled to be dealt with by caution, should be monitored by the Department of Juvenile Justice to ensure its compatibility with the Act’s aims and principles.
6.12 A separate issue arises in relation to s 20(3)(d) and 23(2)(d) of the YOA. In considering whether it is appropriate to deal with a matter by caution, an investigating official under the former section and the DPP under the latter section, must consider the number and nature of any offences committed by the child and the number of times the child has been dealt with under the YOA.
6.13 A submission by the Department of Aboriginal Affairs to the statutory review of the YOA argued that, in making a decision under s 20(3)(d), the police place greater emphasis on the number of offences previously committed, rather than their nature.19 This, the Department argued, “can lead to more indigenous children being directed to court, increasing their criminal convictions and their further marginalisation”.20
6.14 In response to this submission, the review recommended that “a more general discretion be established for gatekeepers by removing the mandatory requirement to consider the number of offences committed by the child when applying the [YOA]”.21
6.15 The Government did not accept this recommendation, arguing that it would be contrary to the amendments to the YOA limiting the number of cautions that can be given.22 The Government put forward instead that “alternative methods of improving the way Aboriginal children are dealt with under the Act [would] be developed in consultation with NSW Police”.23 The Commission supports this initiative. In our view, the number of offences committed by a child is, inevitably, relevant to a gatekeeper’s discretion under the YOA.
REASONS FOR GIVING A CAUTION
6.16 Under s 31(4) of the YOA, once a court has decided to give a caution, it must notify the police of its decision and reasons. The Children’s Court has argued that it is inappropriate for the reasons for giving a caution to be provided to police only, but should be available generally.24
6.17 The general availability of the court’s reasons for imposing a caution would have two benefits. First, it would create a body of precedents to assist in determining whether or not a caution should be given. A caution administered by a court can signify the court’s decision that the particular offence ought more appropriately to have been dealt with by way of caution in the first instance (unless the necessary admissions and consent were not initially forthcoming). As such, the reasons for giving a caution are of potential value in guiding the discretion of investigation officials and specialist youth officers. Secondly, the transparency of the process would increase public confidence in the consistent application of the YOA. The Commission agrees with these observations.
6.18 However, the value of making known the court’s reasons for administering a caution must be balanced against privacy issues. To the extent that the young offender is entitled to have his or her identity and identifying facts of the case concealed, this right must be protected in the disclosure of the court’s reasons.
Recommendation 6.2
Section 31(4) of the Young Offenders Act (1997) (NSW) should be expanded to ensure that the reasons for a court’s giving a caution under that section are generally available, subject to any rights the young offender has to have his or her identity kept private.
CAUTIONING UNDER THE YOA AND THE CCPA
6.19 The Children’s Court has the power to give a caution under s 31 of the YOA for offences covered by that Act where the young offender has admitted the offence. In addition, the Children’s Court may administer a caution under s 33(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) (“CCPA”), if the Court has found a young offender guilty of an offence to which the Act applies.25 An issue raised in Issues Paper 19, (“IP 19”),26 was whether the Children’s Court should continue to have a power to caution young offenders under the CCPA, in addition to its cautioning power under the YOA.
Response to Issues Paper 19
6.20 There was overwhelming support in submissions to IP 19 for the retention of the Court’s cautioning power contained in s 33(1)(a) of the CCPA, in addition to that under s 31 of the YOA.27 Two main reasons were given for retaining these powers: to enable cautioning for offences not covered by the YOA; and to enable cautioning even where there has been no admission of guilt.
The first reason: offences outside the scope of the YOA
6.21 At present, the YOA does not apply to a significant range of offences.28 For example, it excludes from its operation most sex offences, apprehended violence offences and certain drug offences. By contrast, under the CCPA, the Children’s Court has jurisdiction to deal with all matters relating to young offenders with the exception of serious children’s indictable offences.29
6.22 Almost all the submissions in favour of retention of dual powers argued that it is important that the Children’s Court has the option to caution for offences that fall outside the ambit of the YOA.30 An example given by Shopfront illustrates the dangers in limiting the Court’s power to caution for only those offences covered by the YOA:
Although it may seem difficult to envisage, even sex offences may be deserving of a caution. For example, a 16-year-old boy is criminally charged for having sex with his 15-year-old girlfriend. The relationship is loving and consensual, and the parties are of similar age and maturity. However, because the girlfriend is below the age of consent, the boyfriend has technically committed a sex offence. The level of criminality is extremely low and a caution under s 33(1)(a) of the Children (Criminal Proceedings) Act may be an appropriate disposition.31
The second reason: no admission of offence
6.23 For the Court to be able to administer a caution under the YOA, the young person must admit the offence.32 This is not a requirement under the CCPA. Where a young person pleads not guilty to a minor matter but the offence is found proved, the court has the power pursuant to s 33(1)(a) of the CCPA to dismiss the matter with a caution.33
The Commission’s view
6.24 These two justifications for retaining the Court’s cautioning power under the CCPA are compelling. In Chapter 4, the Commission examines whether the scope of the YOA is appropriately drawn and recommends that all offences, except serious children’s indictable offences, come within the general ambit of the YOA.34 However, even if this recommendation is accepted, there will still be offences that Parliament may, from time to time, wish to exclude from the operation of the YOA.35 In that case, some offences will continue to fall within the ambit of the CCPA and not the YOA. There is no reason in principle to exclude the Court’s power to administer a caution for all offences dealt with under the CCPA.
The disposal of charges under each Act
6.25 The Children’s Court has noted that a caution given by the Court under the YOA does not follow an adjudication of the matter, while a caution under the CCPA comes after there has been an adjudication of the matter, a finding of guilt, and a dismissal of the charge.36 The Court explains the difference in this way:
The power to find an offence proven but dismiss the charge, with or without cautions or bonds, exists in all courts, including the Children’s Court. The dismissal is an adjudication of the charge or information laid. … If a caution is given by the court under the [YOA] there is no adjudication of the charge. Rather, the offender is dealt with by way of a caution which is a process having a parallel with the role of the police.37
6.26 The Children’s Court points out that there is no adjudication of the charge when a caution is given under the YOA, but there is no mention of how a charge is formally disposed of. It submits that, when cautioning under s 31 of the YOA, it may be more appropriate for the Court to make an order deeming the proceedings to have been withdrawn, rather than dismissing the charge.38 The Commission agrees that, in a formal sense, it is more appropriate to deem that proceedings have been withdrawn where there is no adjudication on the charge. This would not have any effect on the consequences of a caution under the YOA (especially the recording of the caution39 ).
Recommendation 6.3
Section 31 of the Young Offenders Act (1997) (NSW) should be amended to provide that where a court gives a caution it must make an order deeming the proceedings to have been withdrawn.
The effect of cautions on criminal records
6.27 A caution under the YOA does not, in general, have to be disclosed as criminal history.40 Likewise, a caution and dismissal by the Children’s Court under the CCPA does not, in general, have to be disclosed under the Criminal Records Act 1991 (NSW).41 There are exceptions to these “need not disclose” provisions under the respective Acts that are similar but not identical. The YOA specifies that a caution must be disclosed in two circumstances: first, in applications for certain occupations;42 and secondly, in proceedings before the Children’s Court.43 Section 15(1) of the Criminal Records Act 1991 (NSW) also provides that a caution must be disclosed when applying for certain occupations, which are the same ones as those listed in the YOA. However, s 15(1A) lists an additional field of employment where a caution must be disclosed, not listed in the YOA, namely in applications for child-related employment within the meaning of Part 7 of the Commission for Children and Young People Act 1998 (NSW). The other difference is that, unlike s 68(2)(c) of the YOA, s 15 of the Criminal Records Act 1991 (NSW) does not specify that a caution must be disclosed in proceedings before the Children’s Court.
6.28 This inconsistency results in cautions given by courts being treated differently from those given by other authorised persons under the YOA, for which there is no justification. As well, the legislative policy expressed in s 68(2) of the YOA (requiring the disclosure of a caution in an application for certain types of employment and in proceedings before the Children’s Court) is well justified and ought also to apply to an order of the Children’s Court dismissing a charge and administering a caution under s 33(1)(a) of the CCPA. The Commission has concluded that there should be one procedure for dealing with disclosure of cautions and that this should be contained in the Criminal Records Act 1991 (NSW). We note that this was suggested by the Children’s Court44 and recommended by the statutory review of the Young Offenders Act 1997 (NSW).45
Recommendation 6.4
Sections 12 and 15 of the Criminal Records Act 1991 (NSW) should be amended so as to encompass warnings, cautions or conferences administered under the Young Offenders Act (1997) (NSW) and orders of the Children’s Court dismissing a charge and administering a caution. Section 15 of the Criminal Records Act 1991 (NSW) should be further amended by expanding the exceptions to the application of s 12 to include proceedings before the Children’s Court (including a decision concerning sentencing). Section 68 of the Young Offenders Act (1997) (NSW) should then be repealed.
Other records relating to the offence
6.29 Under s 38(1) of the CCPA, the Children’s Court must order the destruction of photographs, finger-prints and palm-prints, and other prescribed records (other than records of the Children’s Court) relating to the offence following the dismissal of the charge and the giving of a caution under s 33(1)(a). By contrast, the YOA is silent on the retention of material relating to the offence following cautioning.
6.30 The Commission believes that the consequences of a caution under the YOA should, in this respect, be brought into line with the CCPA.46 It is consistent with the focus of the law on rehabilitation of young offenders that such records be destroyed following a caution, whether administered by a court or other authorised person.
Recommendation 6.5
The Young Offenders Act (1997) (NSW) should be amended to require that, when a court or other authorised person administers a caution under that Act, any photographs, finger-prints and palm-prints, and any other prescribed records (other than records of the Children’s Court) relating to the offence be destroyed.
POLICE RECORD KEEPING
6.31 When a young person is given a warning or caution by a police officer, the officer is required to enter a record of the warning or caution on the Computerised Operational Policing System (COPS).47 In relation to cautions, the officer must record: the young person’s name, address, age, gender, and cultural or ethnic background; details of the offence; and information about the caution.48
6.32 Where the Court gives a caution, it must notify the Local Area Commander of the police area in which the offence occurred of its decision and reasons why the caution was given.49 This is one of the important “checks and balances” on police decisions that were intentionally built into the YOA. It is, in effect, a notification from the court to the police that the young offender ought to have been cautioned by the investigating official.50
6.33 Police compliance with the record-keeping requirements of the YOA was an issue raised in IP 19.51 IP 19 referred to an observation made by Hennessy that, in the first year of operation of the YOA, the Police did not fulfil its record keeping duties under the YOA.52
6.34 Other than the submission of the NSW Police itself, no other submission the Commission received addressed the issue as to whether the statutory record-keeping requirements were being met.53 NSW Police admits that it failed to meet these requirements during the early period of the operation of the YOA, but asserts that the relevant information will now be routinely collected from all persons brought into police custody. According to the Police, this will “satisfy the criticisms raised by Hennessy”, and will “ensure total compliance of the Service with the record keeping requirements of the YOA and the amendment Act”.54
Footnotes
1. Young Offenders Act 1997 (NSW) s 27(1).
2. Young Offenders Act 1997 (NSW) s 27(2).
3. Young Offenders Act 1997 (NSW) s 31(1).
4. Young Offenders Act 1997 (NSW) s 23(1).
5. Young Offenders Act 1997 (NSW) s 31(1).
6. Young Offenders Act 1997 (NSW) s 19.
7. Young Offenders Act 1997 (NSW) s 20(1).
8. Young Offenders Act 1997 (NSW) s 20(2).
9. Young Offenders Act 1997 (NSW) s 20(3).
10. Young Offenders Act 1997 (NSW) s 20(6).
11. Young Offenders Act 1997 (NSW) s 20(7).
12. Young Offenders Act 1997 (NSW) s 20(4) and s 21(2).
13. Young Offenders Amendment Act 2002 (NSW).
14. Young Offenders Act 1997 (NSW) s 20(7). See Young Offenders Amendment Act 2002 (NSW) s 1-3.
15. See New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 4 June 2002, the Hon R J Debus, Attorney General, Second Reading Speech at 2487.
16. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 August 2002, Speech of the Hon R Jones at 4227 on the Young Offenders Amendment Bill 2002.
17. Young Offenders Act 1997 (NSW) s 3(b).
18. Young Offenders Act 1997 (NSW) s 7(a).
19. NSW Attorney General’s Department, Report on the Review of the Young Offenders Act 1997 (2002) at 51-52.
20. NSW Attorney General’s Department, Report on the Review of the Young Offenders Act 1997 at 52.
21. NSW Attorney General’s Department, Report on the Review of the Young Offenders Act 1997, Recommendation 15 at 52.
22. New South Wales, Government Response to Report on the Review of the Young Offenders Act 1997 (tabled in New South Wales Legislative Assembly, 24 June 2004).
23. New South Wales, Government Response to Report on the Review of the Young Offenders Act 1997.
24. The Children’s Court of New South Wales, Submission at 5.
25. Children (Criminal Proceedings) Act 1987 (NSW) s 33(1): If the Children’s Court finds a person guilty of an offence to which this Division applies…(a) it may make an order dismissing the charge, or it may make an order dismissing the charge and may administer a caution to the person; Children (Criminal Proceedings) Act 1987 (NSW) s 32: “[Division 4 – Penalties] applies to any offence for which proceedings are being dealt with summarily or in respect of which a person has been remitted to the Children’s Court under section 20.” (Section 20 applies to indictable offences other than a serious children’s indictable offence.)
26. New South Wales Law Reform Commission, Sentencing: Young Offenders (Issues Paper 19, 2001) Issue 2, para 2.14-2.15.
27. Legal Aid Commission of New South Wales, Submission at 3; Shopfront Youth Legal Centre, Submission at 2-3, New South Wales Young Lawyers (Criminal Law Committee), Submission at 1; the Law Society of New South Wales, Submission at 2; New South Wales Police Service, Submission at 2; the Hon Carmel Tebbutt, MLC, (then) Minister for Juvenile Justice, Submission at 2; and the Children’s Court of New South Wales, Submission at 3-6. On the other hand, both the NSW Bar Association (Submission at 1) and the NSW Director of Public Prosecutions (Submission at 1) submitted that: “The Children’s Court should have only one cautioning power. The present duplication [“of the power”: DPP] is confusing and unnecessary.” However, the Director of Public Prosecutions then went on to say: “It is of course important that the Children’s Court has the option to caution for the range of offences to which the YOA does not apply and that power should be retained in the [CCPA]”: at 1.
28. See Young Offenders Act 1997 (NSW) s 8. The scope of the Young Offenders Act 1997 (NSW) is the subject of Chapter 4.
29. See Children (Criminal Proceedings) Act 1987 (NSW) s 28.
30. The Children’s Court of New South Wales, Submission at 4: “[T]he continuation of the two provisions is supported under the principle of providing the Children’s Court with as wide a range of sentencing options as possible.”
31. Shopfront Youth Legal Centre, Submission at 3.
32. Young Offenders Act 1997 (NSW) s 31(1)(b). See Shopfront Youth Legal Centre, Submission at 3; the Law Society of New South Wales, Submission at 2.
33. Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(a). It can also simply dismiss the matter, without a caution.
34. See Recommendation 4.2 and para 4.13-4.14.
35. See Chapter 4 at para 4.28-4.47.
36. The Children’s Court of New South Wales, Submission at 4-6. See Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(a).
37. The Children’s Court of New South Wales, Submission at 4.
38. The Children’s Court of New South Wales, Submission at 4 and 5. The Children’s Court submits that the power to dismiss a charge without proceeding to a conviction under s 33(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) should be retained: Submission at 4.
39. Young Offenders Act 1997 (NSW) s 33.
40. Young Offenders Act 1997 (NSW) s 68(1):
If a person has been the subject of a warning, caution or conference under this Act:
(a) the person is not required to disclose to any other person for any purpose information concerning the warning, caution or conference, and
(b) a question concerning the person’s criminal history is taken not to refer to any such warning, caution or conference, and
(c) in the application to the person of a provision of an Act or statutory instrument, a reference in the provision to the person’s character or fitness is not to be interpreted as permitting or requiring account to be taken of any such warning, caution or conference.
41. Section 8(3) of the Criminal Records Act 1991 (NSW) provides that “[a]n order of the Children’s Court dismissing a charge and administering a caution is spent immediately after the caution is administered”. Section 12 of that Act provides that spent convictions do not have to be disclosed as criminal history.
42. Young Offenders Act 1997 (NSW) s 68(2). For example, a caution for acts of arson must be disclosed where a young person later wishes to become a fire fighter.
43. Young Offenders Act 1997 (NSW) s 68(2)(c).
44. The Children’s Court of New South Wales, Submission at 5.
45. NSW Attorney General’s Department, Report on the Review of the Young Offenders Act 1997, Recommendation 8. The Government accepted this recommendation, pointing out that it is consistent with the Government’s approach to employment screening to protect young children: New South Wales, Government Response to Report on the Review of the Young Offenders Act 1997.
46. See also the Children’s Court of New South Wales, Submission at 6.
47. Young Offenders Act 1997 (NSW) s 17 and s 33; Young Offenders Regulation 2004 (NSW) cl 14 and cl 15.
48. Young Offenders Regulation 2004 (NSW) cl 15(1).
49. Young Offenders Act 1997 (NSW) s 31(4). See also New South Wales Children’s Court, Practice Direction No 17 (12 October 2000).
50. However, almost invariably, cautions given at the court proceedings stage are as a result of the young offender having refused to make the necessary admissions at the police investigation stage and then later changing his or her mind and pleading guilty.
51. NSWLRC 1P 19, Issue 6, para 2.39-2.41.
52. N Hennessy, Review of the Gatekeeping Role in Young Offenders Act 1997 (NSW) (Report to Youth Justice Advisory Committee, 1999), Recommendation A and paragraphs 35-43.
53. The submission of the Minister for Juvenile Justice noted that, for the Youth Justice Advisory Committee, the issue was neither “the extent nor the adequacy of the records kept, but the difficulty of comparing and contrasting the reports that each Department generates”: see Minister for Juvenile Justice, Submission at 5.
54. NSW Police Service, Submission at 4.
