18 Offences for which cautions may be given
A caution may be given for an offence covered by this Act, other than an offence prescribed by the regulations for the purposes of this section.Note. Section 8 sets out offences covered by this Act.
19 Conditions required to be able to give caution
A formal police caution against further offending may be arranged and given in relation to an offence to a child who is alleged to have committed the offence, if:(a) the offence is one for which a caution may be given, and(b) the child admits the offence, and(c) the child consents to the giving of the caution, and(d) the child is entitled to be given a caution.
20 Entitlement to be dealt with by caution
(1) A child who is alleged to have committed an offence for which a caution may be given 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.(2) Despite subsection (1), the child is not entitled to be dealt with by caution if, in the opinion of the investigating official, it is more appropriate to deal with it by other means because it is not in the interests of justice for the matter to be dealt with by giving a caution.(3) In considering whether it is appropriate to deal with a matter by caution, an investigating official is to consider the following:(a) the seriousness of the offence,(b) the degree of violence involved in the offence,(c) the harm caused to any victim,(d) the number and nature of any offences committed by the child and the number of times the child has been dealt with under this Act,(e) any other matter the official thinks appropriate in the circumstances.(4) Despite subsection (1), an investigating official may, if of the opinion that the victim has suffered substantial harm or that the circumstances of the victim are such that it is appropriate to do so, refer the matter to a specialist youth officer to determine whether the matter should be dealt with under this Part or Part 5 even though the offence does not involve any degree of violence or is not of a serious nature.(5) A specialist youth officer to whom a matter is referred under subsection (4) may arrange for a caution to be given under this Part or take action under Part 5 and, in determining whether to do so, may take into account the fact that the victim has suffered substantial harm or the circumstances of the victim.(6) A child is not precluded from being given a caution merely because the child has previously committed offences or been dealt with under this Act.(7) Despite any other provision of this section, a child is not entitled to be dealt with by caution in relation to an offence if the child has been dealt with by caution on 3 or more occasions:(a) whether by or at the request of a police officer or specialist youth officer under section 29 or by a court under section 31, and(b) whether for offences of the same or of a different kind.
21 Determination by investigating official
(1) If an investigating official determines that a child should be dealt with under this Part, the investigating official must arrange for a caution to be given.(2) If an investigating official is of the opinion that it is not in the interests of justice for a matter to be dealt with by way of a caution, the investigating official must refer the matter to a specialist youth officer to consider whether the child should be dealt with under Part 5.
(1) Before an investigating official proceeds to arrange for a caution to be given under this Part, the investigating official must explain the following matters to the child concerned:(a) the nature of the offence and the circumstances out of which it is alleged to arise,(b) that the child is entitled to obtain legal advice and where that advice may be obtained,(c) that the child is entitled to elect that the matter be dealt with by a court,(d) the purpose, nature and effect of the caution.(2) An investigating official must, if practicable, ensure that an explanation takes place in the presence of:(a) a person responsible for the child, or(b) an adult (other than an investigating official) who is present with the consent of a person responsible for the child, or(c) if the child is 14 years or over, an adult chosen by the child, or(d) an Australian legal practitioner chosen by the child.
(1) A child may be referred for a caution under this Part by the Director of Public Prosecutions if:(a) the offence is one for which a caution may be given under this Part, and(b) the child admits the offence, and(c) the child consents to the giving of the caution.(2) In determining whether to refer a matter for a caution, the Director of Public Prosecutions is to take into account the following matters:(a) the seriousness of the offence,(b) the degree of violence involved in the offence,(c) the harm caused to any victim,(d) the number and nature of any offences committed by the child and the number of times the child has been dealt with under this Act,(e) any other matter the Director thinks appropriate in the circumstances.(3) The referral is to be made to a person authorised in writing by the Commissioner of Police for the purposes of this section.(4) The authorised person must arrange for a caution to be given to the child under this Part.(5) Despite any other provision of this section, the Director of Public Prosecutions may not refer a child for a caution in relation to an offence if the child has been dealt with by caution on 3 or more occasions:(a) whether by or at the request of a police officer or specialist youth officer under section 29 or by a court under section 31, and(b) whether for offences of the same or of a different kind.
(1) Before a caution is given to a child, the person arranging for the caution to be given must give a written notice to the child.(2) The notice must contain the following information:(a) the offence in respect of which the caution is to be given,(b) the persons who may be present when the caution is given,(c) the purpose, nature and effect of the caution,(d) the date, time and place at which the caution is to be given,(e) the name of a police officer who is a contact officer concerning the caution,(f) the consequences of failure to attend the giving of the caution,(g) the right of the child to obtain legal advice and where that advice may be obtained,(h) the right of the child to elect that the matter be dealt with by a court if the child does not wish to proceed with the caution.(3) The notice must be given in a form approved by the Commissioner of Police and be expressed in language readily capable of being understood by children.
24A Written statements from victims
(1) Before a caution is given to a child, the person arranging for the caution to be given may:(a) seek a written statement from any victim of the offence concerned that describes the harm occasioned to the victim by the offence, and(b) give guidance to any such victim as to the kind of matters that are appropriate for inclusion in the statement, and(c) provide any such statement received by the person to the person giving the caution to the child.(2) The regulations may make provision for or with respect to the content and form of written statements under subsection (1).
(1) A child may, at any time before a caution is given to the child, decide not to proceed with the caution and elect that the matter be dealt with by a court.(2) An investigating official who arranges for a caution to be given 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 a caution and refer the matter to a specialist youth officer for consideration of whether action should be taken under Part 5.(3) The Director of Public Prosecutions may, at any time before a caution is given in respect of an offence referred by the Director under this Part, determine that it is not in the interests of justice for the matter to be dealt with by way of a caution and refer the matter to a conference administrator under Part 5 or commence proceedings.(4) An investigating official or the Director of Public Prosecutions must give written notice to the child concerned of any determination by the official or Director under this section.
(1) A caution must, if practicable, be given not less than 10 days, and not more than 21 days, after notice of the caution is given under this Part.(2) A caution is to be given at a police station.(3) Despite subsection (2), a caution may be given at a place other than a police station, if the person giving the caution is of the opinion that it is appropriate in the circumstances to do so.
27 Persons who may give cautions
(1) A caution is to be given by a police officer or specialist youth officer authorised in writing by the Commissioner of Police to give cautions under this Act.(2) Despite subsection (1), a caution may be given by a respected member of the community at the request of any such officer, if the officer is of the opinion that it is appropriate in the circumstances to do so. For example, a caution may be given by a respected member of the Aboriginal community if the child is a member of that community.
28 Persons who may accompany child
The following persons, but no other persons, may be present when a caution is given to a child:(a) the child and the person giving the caution,(b) a person responsible for the child,(c) members of the child’s family or extended family,(d) an adult chosen by the child,(e) a respected member of the community chosen by the child, if the person arranging the caution is of the opinion that it is appropriate in the circumstances to do so,(f) an interpreter,(g) if the child has a communication or cognitive disability, an appropriately skilled person,(h) if the child is under care, a social worker or other health professional,(i) if the child is subject to probation or a community service order, the child’s supervising officer,(j) if the investigating official is not giving the caution, the investigating official,(k) if the child and (if present) a person of the kind referred to in paragraph (b)–(d) who is an adult consent, one student or probationary police officer for the purpose of training the officer.
(1) A person who gives a caution to a child must take steps to ensure that the child understands the purpose, nature and effect of the caution.(2) If a child who is to be cautioned has a communication or cognitive disability, it is the duty of the person giving the caution, so far as practicable, to give the caution in the presence of an interpreter or other appropriately skilled person and, if necessary, to obtain the assistance of such a person in giving the caution.(2A) A person proposing to give a caution to a child may defer giving the caution:(a) if a person responsible for the child or the adult chosen by the child is not present—until a person responsible for the child or an adult chosen by the child is present, or(b) if it appears to the person that the child is so affected by alcohol or another drug (or a combination of drugs) that the child’s capacity to understand the purpose, nature or effect of the caution is impaired—until the person considers that the child has regained that capacity.(2B) A person who gives a caution to a child may, if the person considers it appropriate, read out some or all of a written statement from a victim that is provided to the person under section 24A when giving the caution.(3) It is the duty of the person giving the caution to ensure, so far as practicable, that a person responsible for the child or an adult chosen by the child is present when the caution is given.(4) A person who gives a caution to a child may request the child being cautioned to provide a written apology to any victim of the alleged offence.(5) A person who gives a caution to a child must not:(a) attach any conditions to the giving of the caution, or(b) impose any additional sanctions on the child, other than a request of the kind referred to in subsection (4).(6) A caution may be given to more than one child at the same time and in respect of more than one offence alleged to have been committed by a child.
(1) A caution notice containing the following information must be given to a child after the child is cautioned and must be signed by the child:(a) the child’s name,(b) the name and rank (if any) of the person who gave the caution,(c) details of the offence concerned,(d) the place, date and time of the caution,(e) the persons present when the caution was given,(f) the purpose, nature and effect of the caution.(2) The caution notice must be expressed in language readily capable of being understood by children.
(1) A child may be given a caution by a court if:(a) the offence is one for which a caution may be given under this Part, and(b) the child admits the offence.(1A) If a court gives a caution under this section, the court must dismiss the proceedings for the offence in respect of which the caution is given.(1B) A court giving a caution may:(a) allow any victim of the offence concerned to prepare a written statement that describes the harm occasioned to the victim by the offence, and(b) if it considers it appropriate to do so, may permit all or part of the statement to be read to the child when giving the caution.(1C) The regulations may make provision for or with respect to the content and form of written statements under subsection (1B).(2) This Part (other than this section and sections 32 and 33) does not apply to a caution given by a court.(3) Nothing in this Part affects the power of a court to give a caution under section 33 of the Children (Criminal Proceedings) Act 1987.(4) A court that gives a caution under this section must notify, in writing, the Area Commander of the local police area in which the offence occurred of its decision to give the caution and must include the reasons why the caution was given.(5) Despite any other provision of this section, a court may not give a caution to a child in relation to an offence if the child has been dealt with by caution on 3 or more occasions:(a) whether by or at the request of a police officer or specialist youth officer under section 29 or by a court under this section, and(b) whether for offences of the same or of a different kind.
If a caution is given to a child under this Part, no further proceedings may be taken against the child for the offence in respect of which the caution is given or for any other offence in respect of which proceedings could not be commenced if the child had been convicted of the offence for which the caution was given.
(1) A police officer, specialist youth officer or a court must make a record of any cautions given by the officer or court under this Part.(2) The record is to contain the matters prescribed by the regulations for the purposes of this section.
33A Destruction of finger prints, palm prints and photographs
(1) If a child is given a caution under this Part, the Commissioner of Police is to ensure that any finger prints or palm prints obtained from, or photographs taken of, the child in connection with the offence for which the caution is given (and any copies of them) are destroyed.Note. The Commissioner of Police may delegate this function. See section 31 of the Police Act 1990.(2) This section applies despite anything to the contrary in the State Records Act 1998 or any other law.