Sentencing Under the Youth Justice Act
Sentencing under the Youth Justice Act considers the same factors as the sentencing of adults, with the difference that sentencing of youth considers rehabilitation to be the overriding purpose of sentencing for youths (section 47(3A)). Youths are housed separately to adults, at the Ashley juvenile detention centre. The focus in youth justice is diversion away from the criminal justice system. There is a much broader context to this idea, and that includes enhancing and reinforcing relationships of youths to their guardians and/or families, and communities in order to effect rehabilitation. Consideration is to be had to background, cultural heritage, and the possibility of the youth providing redress. The nature of the offence is also considered, as well as age, previous sentences or sanctions imposed on the youth by a court or community conference, and the impact of any orders on the youth’s chances of finding or retaining employment or attending education and training (section 47(4)).
Only on rare occasions will a youth be sentenced as an adult. Such occasions usually concern the gravity of the offence, or habitual offending coupled with the age of the defendant at the time of conviction being above 18.
There is a difference between ‘youth’, as considered by the Youth Justice Act and ‘youth’ as considered by the Supreme Court in general sentencing considerations. Under the Youth Justice Act, youth is restricted to a person who is 10 or more years old but less than 18 years old at the time of offending. Youth as a general consideration in sentencing includes offenders up until the age of 21. The closer to 21, and the graver the offence, the less mitigating weight will be attributed to youth.
Diversionary options that are not available under the Sentencing Act for adult offenders are available under the Youth Justice Act. This includes informal cautions, formal cautions, deferred sentencing/adjournment, and community conferencing. Community conferences are a form of rehabilitative or transformative justice, that enables offenders and victims to meet, and for the offender to see the impact their offence has had on the victim.
Community conferences consist of a facilitator, the youth, persons who are invited by the facilitator, the police officer who requested the conference, the victim of an offence, and a person or persons they choose to provide support and assistance. The youth is entitled to be accompanied by one person of their choosing to do the same. If a person is considered by the facilitator to be deliberately attempting to disrupt the conference the facilitator may require the person to leave, or ensure their departure if they refuse to leave (section 15). If a court orders a community conference (section 37), the attending police officer will likely be representative of the Commissioner of Police rather than the officer who required the conference (section 15(1)(d)). Community conferences have the power to administer a caution against further offending, require an undertaking to apologise, impose a maximum of 70 hours of community service if the youth is 13 or more years old, require an undertaking for compensation or restitution in terms of monetary value or restitution through work on offence-affected property (section 16). The power to impose community service hours is limited by any community service order currently in place, if the effect would be to exceed 70 hours community service in total for youths 13, 14 or 15 years old, or 210 hours for youths 16 or more years.
The sentencing options for the Court are also broader than under the Sentencing Act. Under section 47 the Court can:
- Dismiss the charge and impose no further sentence;
- Dismiss the charge and reprimand the youth;
- Dismiss the charge and require the youth to enter into an undertaking to be of good behaviour;
- Release the youth and adjourn the proceedings on conditions;
- Impose a fine;
- Make a probation order;
- Order that the youth perform community service;
- Make a detention order;
- Make an order it is permitted to make in accordance with section 161A;
- in the case of a family violence offence, make a rehabilitation program order;
- adjourn the proceedings, grant bail to the youth under the Bail Act 1994 and defer, in accordance with Division 7A, sentencing the youth until a date specified in the order
The court can also impose a number of orders, including:
- A suspended detention order
- A restitution order
- A compensation order
- Or any other order allowed under another Act in respect of which the youth committed an offence
Deferral of Sentencing
Deferred sentencing (section 57A) is a new option in Tasmania. The Court may defer for the purpose of:
- assessing the youth’s capacity, and prospects, for rehabilitation
- allowing the youth to demonstrate that rehabilitation has taken place
- assessing the youth’s capacity, and prospects, for participating in an intervention plan
- allowing the youth to participate in an intervention plan
- any other purpose the Court thinks appropriate in the circumstances.