P v Police

P v POLICE
[2003] SASC 198
Magistrates Appeal
Gray J

This is an appeal against a sentence imposed by a magistrate sitting as the Youth Court at Berri. On 15 May 2003 the appeal was allowed. These are the reasons for the orders made.
Background
On 29 December 2002 at about 1.00 am the appellant aged 16 years and two boys aged 15 and 13 years decided to go for a “joy ride”. They took a vehicle belonging to one boy’s stepfather from his shed while he slept. The appellant did not drive the vehicle. She was one of the passengers. The youths intended to return the car. However, a “kill switch” in the car was activated and prevented its return. The stepfather reported the vehicle stolen at approximately 7.30 am that morning. At around 8.30 am police located the vehicle.
The appellant was interviewed at the Renmark Police Station. Her father was present. She admitted being in company of the other youths. She told the police that they had pushed the vehicle from the shed and down the road a short distance. One of the youths had then started the car. The appellant admitted that she was aware at the time that permission had not been given to use the vehicle. She said that she did not care as “it was something to do”. Further investigations were conducted. The appellant was arrested and charged with illegally using a motor vehicle, contrary to section 86A of the Criminal Law Consolidation Act 1935 SA[1]. She was released on police bail.
[1] On the 29^th day of December 2002 at Paringa in the said State, used a motor vehicle without first obtaining the consent of … the owner thereof. Section 86a of the Criminal Law Consolidation Act, 1935. This is a summary offence.
The appellant’s mother worked at a citrus packing plant and her father at a local winery. They had little knowledge of legal procedures. Not long after the appellant’s arrest her parents became concerned about her forthcoming court appearance. Her mother asked one of the police officers who had been involved in investigating the charge about the legal process and whether the appellant needed legal representation. The police officer did not suggest that the appellant consult a legal practitioner.
The day before the hearing, the appellant’s mother rang the police at Berri and talked to a prosecutor. She told the officer about the earlier conversation she had had with the police. She again asked whether she should engage a lawyer for the appellant. The police said that the decision to engage a legal practitioner “was up to them”.
By the time of the hearing, the only documentation the appellant had received in relation to the charge was a copy of her bail agreement. The appellant was unaware that a complaint and police apprehension report had been prepared.
The Proceedings before the Magistrate.
On 22 January 2003 the appellant appeared in court unrepresented. As earlier observed she had not received legal advice. She pleaded guilty.
The magistrate asked the appellant whether she had or wanted legal representation. The appellant replied “no”. The magistrate then asked “Do you realise this is a serious “gaolable” offence?” The appellant replied yes, even though she did not know whether the offence was serious or “gaolable” or what that meant.
The magistrate then asked the appellant her age and the age of the other youths. The magistrate said “[Y]ou should have known better. You were the oldest and should have talked them out of it.” The magistrate noted that the appellant had received a formal caution in 2000. However he then stated ‘[T]hat was a long time ago.’
It was the appellant’s case that the magistrate adopted a blunt and unsympathetic approach. This was particularly evident when he learned that the appellant was not studying or engaged in employment. The approach adopted by the magistrate added to the confusion and distress felt by the appellant and her parents. Neither the appellant nor her parents understood the significance of a conviction, or the long term effect this could have on the appellant. They did not understand that the appellant had the right to make submissions for leniency, or that she could request that no conviction be recorded.
The appellant stated in her affidavit;
I do remember the Magistrate picked up a big book. He flicked through heaps of pages and came up with 500 hours. It seemed to take a long time. He said it was the maximum penalty he could give me.”
The magistrate recorded a conviction and imposed an 18 month obligation. The conditions of the obligation were that the appellant was:
- to be of good behaviour for the duration of the obligation.
-to be under the supervision of an officer of the Department of Human Services (Family and Youth Services) or other person nominated by the Chief Executive of the Department if Human Services (Family and Youth Services) and obey the directions of that officer or person.
- to attend and participate in any specified programmes or activity as directed.
-pursuant to s 27, [the appellant’s parents] to enter into a supplementary undertaking guarantors as to the following;
-to guarantee [the appellant’s] compliance of the conditions of [the appellant’s] undertaking; and
-to take any action as specified and directed by [the appellant’s] supervisor in order to assist [the appellant’s] development and to guarantee against further offending.
-to perform 500 hours Community Service Work within 18 months.
The magistrate also made an obligatory order pursuant to section 86A of the Criminal Law Consolidation Act that the appellant not be licensed to drive a motor vehicle for 12 months.[2] No sentencing remarks were delivered.
[2] Section 86A of the Criminal Law Consolidation Act 1935 states:
The appellant and her parents attended at the Family and Youth Services office in Berri. An officer expressed concern at the apparent severity of the penalty. She told the appellant and her parents to “leave the matter with her” so that she could “look into the parents’ obligations as guarantors, and whether a conviction had been recorded”. The appellant and her parents had contact with that Youth Services officer on six subsequent occasions. On 10 March 2003 she confirmed that a conviction had been recorded and suggested that the appellant seek legal advice.
On 11 March 2003 the appellant and her mother contacted the Riverland Community Legal Service. A solicitor advised that the appellant had a right of appeal, but that the time in which to institute proceedings had expired. The solicitor advised the appellant and her mother that an extension of time could be sought but that there was some urgency. On 26 March 2003 the appellant instructed the solicitor to appeal.
The Appeal
Issues Arising
Counsel for the appellant sought an extension of time to appeal. It was claimed that a serious injustice had occurred. Numerous complaints were advanced. It was submitted that the magistrate erred in recording a conviction. That the sentence imposed was manifestly excessive. The magistrate erred in failing to order a pre sentence report. He did not adequately weigh the appellant’s personal circumstances. He failed to take into account that the appellant was unrepresented and did not give adequate weight to the objects of the Young Offenders Act 1993 and the diversionary aims of the legislation. His reasons were inadequate.
Extension Of Time
Pursuant to Rule 96D.02(1) of the Supreme Court Rules, the appellant had 28 days in which to file an appeal. That period expired on 19 February 2003. The notice of appeal was some 50 days late.
The court has discretion to extend time to appeal rule 3.04(d) upon application by the party. This discretion exists for the purpose of avoiding any injustice.[3]
[3] Gikas v Police (1999) 202 LSJS 301
There is an obligation on the party seeking an extension to explain with frankness and candour the reason for the delay.[4] A court will usually consider whether any prejudice is likely to be suffered by the opposing party, whether the appellant has an arguable case on appeal and whether any substantial grounds exist for apprehending a miscarriage of justice.
[4] Police v Warren [2000] SASC 285 at [16]
Counsel for the appellant submitted that there was a real risk that a miscarriage of justice may occur if the extension was not granted. It was submitted that the appellant and her parents had acted responsibly in considering the course to be followed.
Counsel for the Crown conceded that the appeal had merit. The application for an extension of time was not opposed. In all the circumstances, despite the delay, time should be extended.
Error in the Approach to Sentencing
Failure to ensure that the appellant was aware of her rights
The obligation on magistrates to inform unrepresented litigants of the nature of the proceedings, their rights and options is well established.
In Cooling v Steel[5] Wells J observed:
… [t]he defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed - especially where the court has the power to impose disqualification from holding or obtaining a driver’s licence, to make an order to pay compensation, to direct a forfeiture of property, or to record a term or imprisonment. It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath (more especially if the offence may be held to be trifling) and that he may call witnesses or produce other relevant material for the consideration of the court.
Section 30 of the Young Offenders Act 1993 (SA) gives statutory recognition to this general principle[6].
[5] (1971) 2 SASR 249 at 251
[6] (1) A court before which criminal proceedings are brought against a youth must satisfy itself that the youth understands the nature of those proceedings.
It is important for the court to be patient when dealing with young offenders. If a defendant is without legal representation, the court needs to ensure that they understand the sentencing powers available to the magistrate and the possible outcome of the sentencing process. Expediency in handling a busy list cannot justify any departure from the statutory requirements. These requirements represent the minimum standards that must be observed.
In the present case the requirements of section 30 were not satisfied. Although the magistrate asked the appellant if she wanted legal representation, the written statement required by section 30(2)(b) was not provided. The magistrate did not explain to the appellant the elements of the offence charged, the nature of the allegations and the legal implication of those allegations. He did not draw attention to his diversionary powers. He did not alert the appellant to the existence of his discretion not to record a conviction. The magistrate did not encourage the appellant to make any submissions in mitigation. Although non-compliance with section 30 does not invalidate the orders made, the appellant was seriously disadvantaged. As a result the magistrate was not informed about a number of relevant matters.
Failure to order a pre-sentence report or obtain a history from the appellant
Counsel for the appellant submitted that the magistrate should have ordered a pre-sentence report. Attention was drawn to section 32 of the Young Offenders Act which provides:
(1)   The Chief Executive must, at the request of a court by which a youth is to be sentenced, have a report prepared on the social background and personal circumstances of the youth.
(2)   Such a report may not contain any recommendation about sentence.
(3)   Subject to subsection (5), no report relating to the social background or personal circumstances of a youth may be tendered to a court before the court has found an offence proved against the youth.
…
(5)This section does not prevent the court from receiving during the course of a hearing any psychiatric or medical evidence relating to the youth, insofar as that evidence is relevant to the guilt or innocence of the youth.
(6)The court in determining sentence must not take into account any matter given in evidence, or appearing in any report presented, to the court, if the matter is disputed by the youth, any guardian of the youth or the prosecutor, unless the court has decided that the matter has been proved beyond reasonable doubt.
In the present case the general lack of information and the absence of a pre-sentence report caused the magistrate to sentence on an entirely inadequate factual basis. The magistrate had no real understanding of why the offence occurred. He was in no position to properly assess the appellant’s criminal culpability.
Failure to provide Sentencing Remarks
Counsel for the appellant submitted that the magistrate’s failure to provide sentencing remarks was a departure from the requirements of the Criminal Law (Sentencing) Act 1988. Section 9 provides:
(1) A court must, upon sentencing a defendant who is present in court—
(a) state its reasons for imposing the sentence; and
(b)cause an explanation of the legal effect and obligations of the sentence and, where appropriate, of the consequences of non‑compliance with it, to be given in simple language to the defendant. …
(2) The validity of a sentence is not affected by non‑compliance or insufficient compliance with this section.
The absence of reasons creates a particular difficulty. This court does not know what matters the magistrate took into account in the exercise of his sentencing discretion. The Court does not know the sentencing principles upon which the magistrate acted.[7] As a result the appellate court cannot properly perform its statutory function.
[7] Hodgson v Police [2002] SASC 35 (Doyle CJ)
Although failure to provide sentencing remarks does not of itself invalidate the sentence, it makes it difficult for the Crown to contend that there was not an error in sentencing.
Failure to Divert
In R v McMillan[8] I made the following observations about the concept of diversion, its history and use in South Australia:
It has long been recognised that the criminal law is a blunt instrument for dealing with particular types of offenders particularly young offenders, aboriginal offenders, drug users and those suffering from mental illness. The courts have developed techniques to address difficult cases, sometimes with legislative backing and sometimes by way of informal initiatives.
…
The concept of diversion involves a realisation that traditional criminal sanctions are not effectively reducing the criminal activities of certain persons within the community. The aim is to divert or channel those persons out of the court process into programs with a rehabilitative treatment focus. This is with a view to their long term rehabilitation and the prevention of further offending.
[8] (2001-2002) 81 SASR 540 at [57, 60,] Diversion has also been the subject of considerable academic comment. As Graycar observed in the Australian Institute of Criminology paper Dealing with Delinquency Diverse Challenges Youth Justice 2000: Managing A New World In Transit 15 Aug 2000:
“Diversion is the channelling of an offender or suspect away from the criminal justice process. This may take the form of a caution or warning, diversion at the pretrial stage for resolution of the case by some informal procedure, or alternatives to conviction or sentence following a trial.”
In developing the Young Offenders Act Parliament recognised the limitations of more traditional methods of punishment. Parliament sought to offer the advantages of a diversionary process. It was thought that the community would, in appropriate cases, be better protected by helping young offenders recognise their wrongdoing. The community could then assist the young offenders to develop into law abiding members of the community by facilitating their rehabilitation and encouraging the realisation of their potential. These objectives are reflected in section 3 of the Act:
(1)   The object of this Act is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential.
…
(2)   Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow:
…
(b)family relationships between a youth, the youth's parents and other members of the youth's family should be preserved and strengthened;
(c)a youth should not be withdrawn unnecessarily from the youth's family environment;
(d)there should be no unnecessary interruption of a youth's education or employment;
(e)        a youth's sense of racial, ethnic or cultural identity should not be impaired.
The Young Offenders Act provides for diversion at two levels. The police have a discretion to divert certain matters away from the traditional court process. Sections 6 and 7 permit diversion to an informal or formal caution or a family conference:
6 (1) If a youth admits the commission of a minor offence, and a police officer is of the opinion that the matter does not warrant any formal action under this Act, the officer may informally caution the youth against further offending and proceed no further against the youth.
(2) If a youth is informally cautioned under this section, no further proceedings may be taken against the youth for the offence in relation to which the youth was cautioned.
(3) No official record is to be kept of an informal caution.
7. (1) If a youth admits the commission of a minor offence, a police officer may deal with the matter as follows:
(a) the officer may deal with the matter under Division 2; or
(b)the officer may notify a Youth Justice Co-ordinator of the admission so that a family conference may be convened to deal with the matter; or
(c)the officer may lay a charge for the offence before the Court.
On its face the present matter was an appropriate case for police diversion. However, this did not occur. The magistrate also had a judicial discretion under section 17(2) to divert the matter:
The Court may, even though a charge has been laid, refer the subject matter of the charge (after the youth's guilt has been established either by admission or by the Court's findings) to be dealt with by a police officer or by a family conference.
Section 17 enables a court to refer the subject matter of a charge to the police for a caution or to a family conference when it considers it is appropriate. The court’s power to refer is not limited to minor offences. The legislation contemplates the possibility of diversion by a judicial officer once guilt has been established[9]. This discretion is generally unfettered. The only limitations are those expressly provided for in section 17(3).
[9] R v Police (2002) 224 LSJS 210.
When sentencing the magistrate made no reference to section 17 of the Young Offenders Act or the possible utility in referring the appellant’s case to a family conference. This was despite the fact that one of the other youths involved in the offending had his case diverted to a family conference.
On apprehension the appellant acknowledged her guilt and assisted the police. She demonstrated contrition and remorse. The appellant had been offered a place at the Murray Institute of TAFE to study a certificate in Community Service. She had re-enrolled to complete her Year 11 SACE at Renmark High School. The appellant’s goal had always been to become a youth social worker. This information was not placed before the magistrate. The appellant has strong family support. An affidavit of her mother evidences the commitment of her family to stand by their daughter and provide her with ongoing support.
These considerations demonstrate that the appellant was a suitable candidate for diversion and in particular for family conferencing. This process would have allowed for her to have a face to face meeting with the victim and would have provided the opportunity to talk through all of the issues. The owner of the vehicle could have expressed his views about the appellant’s conduct in a controlled environment. The appellant would then have been in a position to better understand the consequences of her behaviour.[10]
[10] The observations of Graycar referred to in footnote 11 are apposite:

There was a further factor which supported the use of a family conference. In this case the appellant and her family reside and are likely to remain in a country area. Given that the appellant is likely to be in contact with the victim, her friend’s stepfather, family conferencing offered greater prospects for her acceptance back into the community with understanding and compassion. In a rural community such an approach offered particular advantages.
The magistrate erred in not considering the exercise of his diversionary powers. He also should have informed the appellant and her family of these powers.
Should The Magistrate Have Imposed a Conviction?
Counsel for the appellant submitted that the magistrate should not have imposed a conviction.
Section 17 of the Young Offenders Act provides that when dealing with a charge the Youth Court has the powers of the Magistrates Court. Section 17(1) picks up sections 16 and 39 of the Sentencing Act.
Section 16 provides:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to—
(i)    the character, antecedents, age or physical or mental condition of the defendant; or
(ii)     the fact that the offence was trifling; or
(iii)    any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
Section 39 provides:
(1) Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(ab)   to comply with the other conditions (if any) included in the bond; …
The option of proceeding without conviction can be used when sentencing young offenders. It enables the court to impress upon a young offender the seriousness of their actions without exposing them to the long term consequences of a conviction.
A conviction remains with an offender for life. It can hamper employment prospects, prevent the undertaking of certain types of employment, create difficulties when entering countries and provide restrictions in other ways. A conviction should not be imposed on a young offender without first carefully considering the long term implications for the individual involved.
In The Queen v Avgoustinos[11] Bray CJ addressed the position of the young adult offender and observed:
Indeed, I would say for myself that when a court chooses to dismiss a charge without proceeding to conviction there must be some difference in the weight which should be placed on that order and the weight which should be placed on a conviction without a penalty. Parliament has provided these two alternatives; it must have intended that there should be some difference in effect between them. There is no immediate difference. In either case the defendant leaves the court unscathed. The only difference therefore can be in their respective long-term effects on the defendant’s record.
These remarks have even more force when a court sentences a young offender.
[11] (1975) 13 SASR 48 at 49
In this case the appellant’s offending did not cause personal injury or property damage. Although involved in criminal offence, her culpability was at the lower end of the scale. The appellant’s future career prospects may be adversely affected by the recording of a conviction.
The magistrate erred in failing to consider proceeding without recording a conviction. The circumstances of the present case called for the exercise of the discretion not to convict.
Community Service Order
The magistrate required the appellant to perform 500 hours of community service. This was the maximum number of hours possible.[12] Given that the appellant’s criminal culpability was at the lower end of the scale, this was an inappropriate case in which to impose the maximum number of hours. The magistrate appeared to follow this course when he learnt that the appellant was not at school and was unemployed. He appears to have assumed that she was indolent. In fact, as earlier observed, her personal circumstances were quite different. She needed understanding, counselling, support and encouragement. She needed to be helped through a time of adolescent difficulty. The 500 hours of community service represented a very significant punishment. The sentence was manifestly excessive.
Terms of the Bond
[12] Young Offenders Act 1995 (SA) s25
The magistrate placed on obligation of guarantee on the appellant’s parents. He did so without any inquiry into the family circumstances. While this course may be appropriate in some cases, an investigation of the background family circumstances in this case would have disclosed that there were tensions in the family that made the obligation inappropriate. Imposing such an obligation without considering the family circumstances was an error.
Conclusion
The Crown accepted that the magistrate had erred in his approach to sentencing. All of the appellant’s complaints were acknowledged as departures from the proper approach to the sentencing of a young offender. It was appropriate for this court to re-sentence the appellant.
The Difficult Position of the Magistrate
It must be recognised that country magistrates attend to extensive daily lists. It is not uncommon for a magistrate’s list to include 80 or 90 matters on a normal sitting day. At the Berri Youth Court cases are heard by a “visiting magistrate”. The specialist Youth Court does not attend. Youth matters are dealt with as a group, generally in the afternoon. Considerable pressures may arise. This difficulty provides some explanation for the problems that arose in the present case.
The appellant was seriously disadvantaged by not having legal representation. She was unable to inform the court of all of the relevant circumstances. As a result the magistrate did not consider a number of options which were available to the Youth Court.
Duty Solicitor
A duty solicitor’s primary role is to assist unrepresented people appearing in court. Priority is given to representation of people in custody for such applications as bail, pleas in mitigation of penalty on a plea of guilty or applications for remand. Where resources allow, a duty solicitor may also appear on simple matters for people who are not in custody. Commonly a duty solicitor would appear to apply for a remand or adjournment or to enter a guilty plea. This service is usually offered where the person would be at a significant disadvantage without representation.
A duty solicitor’s role can also be to advise clients to apply for legal aid or instruct another solicitor where the matter appears to be more complicated or would take more time in preparation than the duty solicitor has available. Duty solicitors also provide a general advice service. This may include advising on such issues as potential defences, possible penalties and whether the offence is one which might attract a sentence of imprisonment. A duty solicitor can also advise a client on court procedures and matters which should be brought to the magistrate’s attention by way of mitigation of any penalty.
If a duty solicitor had been available on the day of the appellant’s hearing, at the very least basic advice could have been provided to the appellant as to the best way to proceed and correct court procedures.
The magistrate’s difficulties were compounded by the absence of a duty solicitor service in the Riverland. Such a service is available in the Adelaide Youth Court as well as in a number of city and suburban magistrates courts. The court in the Riverland as well as the appellant were disadvantaged.
Re-sentencing
Before this court the facts of the offence as submitted to the magistrate by the prosecutor were accepted. These facts were recounted earlier.
Counsel for the appellant outlined her client’s antecedents in considerable detail. The appellant came from a hardworking, supportive Riverland family. Both parents had attempted to instil in the appellant the need for a good education. They encouraged her to qualify for a skilled vocation. The appellant progressed well at school until mid-way through year 11. She worked 20-30 hours a week at a local supermarket in addition to her schooling. This heavy load proved to be too much and difficulties arose. The appellant did not have the maturity to handle the situation. She abandoned both school and work. This led to tension within the family. The appellant seemingly changed from a happy hardworking student both in and out of school, to an adolescent with a loss of direction and little to do. This change was bought about by “overload”. It was against this background that the offence was committed. As earlier observed the appellant’s criminal culpability was at the lower end of the scale.
The appellant’s family took steps to remedy the problems that had developed. The appellant moved to now live with her grandmother at Berri. She enrolled in a T.A.F.E course in Community Services (Youth Work) and is doing well. She has frequent contact with her parents. She has completed almost 40 hours of community service in furtherance of her obligation. She has been working at a local primary school with indigenous children. She is enjoying and benefiting from this work. This experience will directly assist in her youth worker training. The appellant intends to continue with this course until August 2003 when she proposes to resume Year 11.
This was a case where police diversion was appropriate. A family conference should have been ordered. It is now too late for either of these courses to be followed.
As earlier observed the recording of a conviction in this case was unwarranted. The appellant should not be left with a permanent mark against her name. It is in both the appellant’s and the community interest that she be rehabilitated.
It would have been inappropriate on this appeal to impose a community service order beyond the hours already served in re-sentencing the appellant. However, events have shown that the community service undertaken by the appellant has benefited both the appellant and the community. In the circumstances it is desirable that the community service not end abruptly. The community service order is extended beyond the hours already served by 35 hours.
As there have been some tensions within the family, it is important that the appellant have an independent, qualified person to provide advice and guidance. The appellant’s supervised obligation should extend for 18 months from the time of resentencing.
Conclusion
On 15 May 2003 the appeal was allowed and the following orders were made:
-       the conviction recorded by the magistrate was set aside
-the orders made by the magistrate were set aside except for the order for disqualification of driver’s licence
-the appellant was discharged without conviction on condition that she enter an obligation to be of good behaviour for a period of 18 months and undertake 35 hours of community service. The appellant was to be under the supervision and obey all lawful directions of an officer of the Department of Human Service (Family and Youth Health Division) throughout the period of the obligation.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1      On the 29^th day of December 2002 at Paringa in the said State, used a motor vehicle without first obtaining the consent of … the owner thereof. Section 86a of the Criminal Law Consolidation Act, 1935. This is a summary offence.
2 Section 86A of the Criminal Law Consolidation Act 1935 states:
(1) A person who, on a road or elsewhere, drives, uses or interferes with a motor vehicle without first obtaining the consent of the owner of the vehicle is guilty of an offence.
(3) Notwithstanding the Children’s Protection and Young Offenders Act 1979 where the Children’s Court finds a charge of an offence against this section proved against a child, the Court must (whether or not it convicts the child of the offence and in addition to any other order that it may make in relation to the child) order that the child be disqualified from holding or obtaining a driver’s licence for a period of 12 months (commencing, in the case of a child who has not attained the qualifying age for a driver’s licence, not earlier than when the child attains that age).
(4) The disqualification prescribed by subsection (2) or (3) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.
3      Gikas v Police (1999) 202 LSJS 301
4      Police v Warren [2000] SASC 285 at [16]
5 (1971) 2 SASR 249 at 251
6     (1) A court before which criminal proceedings are brought against a youth must satisfy itself that the youth understands the nature of those proceedings.
(2) If the youth is not represented by counsel or solicitor, the court—
(a)    must explain to the youth in simple language the elements of the offence charged, the nature of the allegations against the youth and the legal implications of those allegations; and
(b)    must provide the youth with a written statement in the prescribed form of the youth's rights in respect of legal representation and of the way to proceed in order to obtain legal advice, representation or assistance.
(3) If a youth is sentenced to a fine or ordered to make any other payment of money, the court must give the youth a notice stating in simple language the amount the youth must pay and the time and place at which payment is to be, or may be, made.
(4) Non-compliance with this section does not invalidate a judgment or order of the court.
7      Hodgson v Police [2002] SASC 35 (Doyle CJ)
8 (2001-2002) 81 SASR 540 at [57, 60] Diversion has also been the subject of considerable academic comment. As Graycar observed in the Australian Institute of Criminology paper Dealing with Delinquency Diverse Challenges Youth Justice 2000: Managing A New World In Transit 15 Aug 2000:
“Diversion is the channelling of an offender or suspect away from the criminal justice process. This may take the form of a caution or warning, diversion at the pretrial stage for resolution of the case by some informal procedure, or alternatives to conviction or sentence following a trial.”
9      R v Police (2002) 224 LSJS 210.
10     The observations of Graycar referred to in footnote 11 are apposite:
“The process of restorative justice involves bringing together victims and offenders, and others who may have an interest in a particular offence to deal collectively with how to resolve the impact of the offence, and to chart a path for the future.
In addition to the victim and the offender we might see family members and other members of their communities who may be affected or who may be able to help prevent a recurrence of the offence. These meetings are facilitated by a [youth justice co-ordinator] who helps bring about a collective resolution. The goals of meetings are to heal the relationship between the victim and offender, provide restitution and healing for the victim, reassure the community, and encourage acceptance of responsibility and healing for the offender through apology and reparation.
…
In a conference the victims are given the opportunity to confront the young offender, express the hurt and anger that they feel and play a key role in deciding what needs to be done by the youth to make up for the harm caused. Conferencing is attractive because it entails the ideals of healing and restoration, and of empowering offenders, victims and families. It sees young people as integral members of a family and a community, rather than as social isolates.”
11 (1975) 13 SASR 48 at 49
12     Young Offenders Act 1995 (SA) s25

(1) A person who, on a road or elsewhere, drives, uses or interferes with a motor vehicle without first obtaining the consent of the owner of the vehicle is guilty of an offence.
(3) Notwithstanding the Children’s Protection and Young Offenders Act 1979 where the Children’s Court finds a charge of an offence against this section proved against a child, the Court must (whether or not it convicts the child of the offence and in addition to any other order that it may make in relation to the child) order that the child be disqualified from holding or obtaining a driver’s licence for a period of 12 months (commencing, in the case of a child who has not attained the qualifying age for a driver’s licence, not earlier than when the child attains that age).
(4) The disqualification prescribed by subsection (2) or (3) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.

(2) If the youth is not represented by counsel or solicitor, the court—

(a) must explain to the youth in simple language the elements of the offence charged, the nature of the allegations against the youth and the legal implications of those allegations; and

(b) must provide the youth with a written statement in the prescribed form of the youth's rights in respect of legal representation and of the way to proceed in order to obtain legal advice, representation or assistance.

(3) If a youth is sentenced to a fine or ordered to make any other payment of money, the court must give the youth a notice stating in simple language the amount the youth must pay and the time and place at which payment is to be, or may be, made.

(4) Non-compliance with this section does not invalidate a judgment or order of the court.

“The process of restorative justice involves bringing together victims and offenders, and others who may have an interest in a particular offence to deal collectively with how to resolve the impact of the offence, and to chart a path for the future.
In addition to the victim and the offender we might see family members and other members of their communities who may be affected or who may be able to help prevent a recurrence of the offence. These meetings are facilitated by a [youth justice co-ordinator] who helps bring about a collective resolution. The goals of meetings are to heal the relationship between the victim and offender, provide restitution and healing for the victim, reassure the community, and encourage acceptance of responsibility and healing for the offender through apology and reparation.
…
In a conference the victims are given the opportunity to confront the young offender, express the hurt and anger that they feel and play a key role in deciding what needs to be done by the youth to make up for the harm caused. Conferencing is attractive because it entails the ideals of healing and restoration, and of empowering offenders, victims and families. It sees young people as integral members of a family and a community, rather than as social isolates.”

[2003] SASC 198

24 June 2003