The Youth Justice Act 1997

The Youth Justice Act 1997 (Tas) governs the processes for young offenders in the Magistrates Court (Youth Justice Division) and the Supreme Court. This includes the responsibility to determine both care and protection matters and summary criminal proceedings in respect of young people.

The Magistrates Court (Youth Justice Division) is a court of summary jurisdiction that deals with offences other than prescribed offences. Prescribed offences are offences cannot be dealt with in the Youth Justice Division. Instead, they must either be dealt with in the criminal or general division of the magistrates court (just like any other adult matter) or if they are particularly serious they may need to be dealt with in the Supreme Court.  A court under the Youth Justice Act is made up of a single magistrate to hear the charges against the defendant.

Purposes of the Act and Sentencing

The Youth Justice Act does not use the word ‘punishment’. It uses the term ‘sanction’ to reflect the greater emphasis on rehabilitation that the amendments have also ushered in to the Act. Where previously a sentencing Magistrate had discretion to consider rehabilitation as one of several principles of sentencing, the Magistrate is now required to give rehabilitation more weight than any of the other considerations of sentencing.

The objective of the Youth Justice Act 1997 is to appropriately administer youth justice with an emphasis on diverting young people who have admitted committing an offence away from the criminal justice system by emphasising informal cautions, formal cautions, community, family, and conferencing. Importantly, the Youth Justice Act seeks to encourage youths to take personal responsibility for their actions. Other principles that oversee the Act include that youth are not to be treated more severely than an adult would be and that victims and guardians are given an opportunity to participate in the process of dealing with the youth.

Prescribed Offences

A prescribed offence is an offence that is not within the jurisdiction of the Youth Justice Division of the Magistrates Court. A youth charged with a prescribed offence will appear before the Supreme Court of Tasmania. Prescribed offences include crimes that are of such magnitude that the youth will be tried before an adult court. Prescribed offences are not dealt with by the Youth Justice Division at all. Once an offence is referred to the Supreme Court the sentencing options are governed by the Sentencing Act 1997 (Tas) not the Youth Justice Act. The Sentencing Act is not subject to the limitations on sentencing imposed under the Youth Justice Act.

Prescribed offences are organised by type of offence and the age of the offender. For a youth who is less than 14 years old, the prescribed offences are murder, manslaughter and attempted murder. For a youth who is 14, 15 or 16 years old, prescribed offences also include aggravated sexual assault, rape, maintaining a sexual relationship with a young person, armed robbery and aggravated armed robbery. Prescribed offences also include ‘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’. These prescribed offences must all be dealt with in the Supreme Court.

The other main category of prescribed offences includes most traffic offences if committed by a youth who is 17 years old on the date of the offence. This category of prescribed offences includes most traffic offences such as drink-driving, ‘hooning’ and driving without a licence.  If any 17-year-old commits any traffic offence under the Traffic Act 1925 (Tas), the Vehicle and Traffic Act 1999 (Tas), and the Road Safety (Alcohol and Drugs) Act 1970 (Tas), (including ‘hooning’ contrary to the Police Offences Act 1935 (Tas), s37J).they will be dealt with as if they were adults.

Age of criminal responsibility

Section 3 of the Youth Justice Act defines a ‘youth’ as a person who is 10 or more years old but less than 18 years old at the time when the offence the person has committed (or is suspected to have committed) occurred.