Where does sentencing law come from?

Sentencing law comes from two sources: statute and the common law. In Tasmania, the Sentencing Act 1997 (Tas) is the statutory source of law for Tasmanian offences committed by adults. Juveniles, in all but the most exceptional cases, are sentenced under the Youth Justice Act 1997 (Tas). Some common law principles apply in Tasmania, as the statute is silent on some points of law. The common law in sentencing applies in all Australian jurisdictions in as far as their sentencing legislation is silent. In Tasmania, this means that the ‘instinctive synthesis’ approach, parsimony, proportionality, double jeopardy, and retribution continue to be governed by the common law, and coexist with the Sentencing Act. These will be discussed in depth later.

The Sentencing Act and the Youth Justice Act both have common themes. Both of these Acts considers punishment and rehabilitation to be important, however, sentencing for adults tends to begin with denunciation and deterrence as the primary purposes whereas sentencing for juveniles, in all but the most exceptional cases, has the predominant purpose of rehabilitation and treatment as the starting point. Up until the age of 21 sentencing for youths also has rehabilitation as a dominant purpose, but the degree to which rehabilitation is considered for young offenders varies, depending on circumstances.