Page 2457 - Week 07 - Tuesday, 1 July 2008

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(a) the young offender’s culpability for the offence having regard to his or her maturity;

(b) the young offender’s state of development;

However, sentencing law already requires an examination of the cultural background, character, antecedents, age and physical or mental condition of the offender. In this case, what does the addition propose to be made by section 133D add to the law as it stands?

There is a provision contained in proposed subsection 133C (2) of the act, which says that a court “must have particular regard to the common law principle of individualised justice”. It is currently the case that common law sentencing principles effectively run concurrently with provisions contained in the Crimes (Sentencing) Act. However, what does this subsection add? What does “particular regard” mean in this context? If the common law sentencing provisions still run, this provision is pointless. Alternatively, this provision could have the effect of negating, by implication, common law sentencing principles.

Self-evidently, if youths are to be sentenced according to different criteria from adults, the clear thing to do would be to expressly state what should be considered in a discrete area of the law. And the opposition remains concerned that the provisions relating to the sentencing of young offenders is unnecessarily complex, which can give rise to inconsistencies in approach, which is clearly undesirable when considering everything from the rights of the offenders themselves through to the rights of victims and the community.

I want to comment on the principle of detention as a last resort, which has been articulated in this bill. That is a common principle throughout our justice system and sometimes I think it is taken to absolute extremes by courts to try to excuse not jailing people who should be jailed. But it is a principle and it is in our legislation. It is in varying forms within legislation interstate. I think the provision here is probably somewhat more extreme than what would apply similarly, say, in New South Wales or other jurisdictions. But it is a fundamental principle which does flow through our system, both here and interstate.

Detention, of course, is not always the right solution for changing the behaviour of children and young people, and there are other ways of rehabilitating them than detention alone. However, I do not think anything here should be taken as an indication to courts in terms of sentencing generally that people are never to be jailed. Extreme circumstances, last circumstances, circumstances of a last resort, are to be taken as incredibly extreme.

Quite clearly, there are exceptions. One has to look at the seriousness of the offence. Indeed, in the past, young people who have committed incredibly serious offences have been jailed even though they had no prior convictions. That is right; that is proper. I should not say jailed; I should say put in detention, sent to Quamby. There is a difference, a very real difference, and necessarily so, when one considers juvenile

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