Law Society of Tasmania Criminal Law Conference 2023
Youth Justice Jurisdiction and Prescribed Offences
Section 161 - Jurisdiction of Court
o To hear and determine a charge against a youth for “an offence”.
Section 3 - Interpretation
o “An offence” is “any offence other than a prescribed offence” and “prescribed offence” is defined as…
o Youth less than14 years old
~ murder, attempted murder or manslaughter
o Youth 14, 15 or 16 years old
~ all of the above
~ aggravated sexual assault
~ rape
~ persistent sexual abuse of a child young person
~ armed robbery and aggravated armed robbery
~ being found prepared for the commission of a crime under Chapter XXVII of the Criminal Code armed with a dangerous or offensive weapon or instrument); and
~ evade police
o Youth 17 years old
~ all of the above
~ s 37J Police Offences Act (Hooning)
~ offences under the Road Safety (Alcohol & Drugs) Act, Marine Safety (Misuse of Alcohol) Act, Traffic Act or the Vehicle & Traffic Act except if being determined in conjunction with proceedings for an offence that is not a prescribed offence.
Section 161 (2) – the election
A youth who is 15 years old or more that is charged with an indictable offence that is not a prescribed offence must be asked by the Court if the youth is willing to be tried by the Youth Justice court instead of by a jury.
Section 164 - Lack of jurisdiction discovered during proceedings
o If a court constituted by a magistrate finds that it does not have jurisdiction the Court may remove the proceeding to a court of competent jurisdiction; or
o Where the court of competent jurisdiction may be constituted by a magistrate, continue to hear and determine the proceeding as the court of competent jurisdiction.
Sentencing
Diversionary Sentencing Options
• Section 10 - Formal Cautions are administered by police (and therefore cannot take place without police agreement)
• Police can also convene Community Conferences without sending matters to court.
• Section s37 – even in circumstances where police may not agree to a Community Conference, the court may order a Court Ordered Community Conference.
Section 48 – Limitations on Sentences
(1) The Court not must impose a sentence that is more severe than would be imposed on an adult who committed the same offence.
(2) The court must obtain a pre-sentence report before imposing a sentence of Probation, Community Service or Detention.
Section 47(1)– Most sentencing options
(a) Dismissal
(b) Dismissal and reprimand
(c) Dismissal with undertaking to be of good behaviour
(d) Release and Adjournment
(e) Fine
(f) Probation
(g) Community Service
(h) Detention
(ha) Any order under section 161A (below)
(i) For a Family Violence Order, a rehabilitation program order
(j) Defer sentencing
Section 47(2) – Other Sentencing options
(a) Suspended Detention
(b) Restitution Order
(c) Compensation Order
(d) Any other order a court may make under another Act in respect of the offence of which the youth is found Guilty (eg. disqualification)
Section 161A – Sentencing as an Adult
If sentencing a youth who is +18 at the time of sentence, the Court may exercise the powers of a court of petty sessions under the Sentencing Act 1991 in addition to or instead of powers under the YJA.
Section 107(2) – YJA may apply even to a prescribed offence
o The Supreme Court or a summary court, may exercise all the powers of the Youth Justice Division in addition to, or instead of, any other power it may exercise when sentencing, including for a prescribed offence, for a person between 10 and 18 at the time they committed the offence.
Section 46(2) – Application of Certain Sentence Provisions
o (a) The court must disregard minimum fines or minimum terms of imprisonment
o (c) The court must comply with a requirement that a loss of license, or penalty other than a fine or term of imprisonment, must be imposed.
Sentencing for Certain Traffic Matters
Note Section 107 above – the court may exercise YJA sentencing to a prescribed offence. Also note Section 46(2)(a) and (c) above.
• Evade Police – a prescribed offences for all over 14, but for people under 17 at the time of the offence, mandatory minimum sentences under the Police Powers (Vehicle Interception) Act do not apply – section 11A(4B) of that act
o Note that mandatory minimums apply “if a court convicts a person.”
• Unaccompanied Learner – where conviction imposed that mandatory minimum 3 months disqualification must be imposed, but mandatory fine of $150 disregarded
• Drink/Drug Driving – where convictions imposed, the applicable mandatory disqualification, but not mandatory fines apply
• Excessive speeding - where convictions imposed, the applicable mandatory disqualification, but not mandatory fines apply
Recording Convictions
Section 49
• (1) and (2) Convictions may only be imposed for sentences that include:
47(1)
(e) Fine
(f) Probation
(g) Community Service
(h) Detention
(ha) Any order under section 161A (below)
(i) For a Family Violence Order, a rehabilitation program order
(j) Defer sentencing
Note therefore that conviction cannot be recorded if the only sentence is a wholly Suspended Detention Order under s47(2)(a).
• (5) Except as otherwise provided by this or any other Act, a finding of guilty without the recording of a conviction is not taken to be a conviction for any purpose
The Court cannot impose a conviction and no further penalty. Further the court cannot impose only a conviction and disqualification (unless using section 161A to sentence as an adult).
See F v Tasmania [2020] TASSC 28 [2020] per Estcourt J at [16]
Doli Incapax
The burden of proof is on prosecution to establish beyond a reasonable doubt that a person between 10 and 14 has sufficient capacity for criminal responsibility. Prosecution must adduce evidence on this point – it is not for defence to argue a lack of capacity eg. produce a psychological report
Criminal Code section 18
(1) No act or omission done or made by a person under 10 years of age is an offence.
(2) No act or omission done or made by a person under 14 years of age is an offence unless it be proved that he had sufficient capacity to know that the act or omission was one which he ought not to do or make.
RP v The Queen [2016] HCA 53 (21 December 2016)
• Plurality judgement - Kiefel, Bell, Keane and Gordon JJ
o [9] No matter how obviously wrong the act or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts.
o [9] The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child’s development is such that he or she knew that it was morally wrong to engage in the conduct. This directs attention to the child’s education and the environment in which the child has been raised
Bail Applications and Reports
YJA s5(1)(g) – General Principles of Youth Justice detaining a youth in custody should only be used as a last resort and should only be for as short a time as is necessary
Bail Support Plans can and regularly are ordered upon refusal of bail.
YJA s104 – Child Safety report
YJA s105 – Mental Health report
Arrest
Police limit on power to arrest – YJA s24
A police officer may only arrest a youth in relation to an offence if the arresting officer believes the offence is serious enough to warrant an arrest and also believes, on reasonable grounds, that –
(a) the arrest is necessary to prevent a continuation or repetition of the offence or the commission of another offence that, if it were committed by the youth, would be sufficiently serious to warrant the youth being arrested in relation to the commission of that offence; or
(b) the arrest is necessary to facilitate the making of a PFVO, and FVO or a restraint order
(c) the arrest is necessary to prevent concealment, loss or destruction of evidence relating to the offence; or
(d) the youth is unlikely to appear before the Court in response to a complaint and summons.
Note that section 63(1) of the Public Health Act (youth possessing tobacco) is not a criminal offence.
Therefore, a youth cannot be lawfully arrested for this.
In addition, any formal direction given by police under 15B of Police Offences Act based on smoking or possession of tobacco is invalid. Therefore, any arrest for failing to comply with such a direction is invalid.
Any offences for conduct against police flowing from the above – police are not acting in lawful execution of their duty.
