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29 Nov 2017

Statutes Amendment (Youths Sentenced as Adults) Bill

The Hon. A.L. McLACHLAN (12:55): I rise to speak to the Statutes Amendment (Youths Sentenced as Adults) Bill. I speak on behalf of the Liberal Party and indicate that we will support the second reading. The bill amends the Young Offenders Act 1993, the Criminal Law (Sentencing) Act 1998 and the Sentencing Act 2017. This bill represents the government’s response to the tragic events that took place earlier this year when a young mother was killed in a motor vehicle accident that involved youths driving a stolen vehicle at high speed.

One of the young men involved is 18 years old, while the others are aged between 13 and 17. Those involved are still being dealt with by the courts. However, at the time, the Attorney-General indicated that new laws allowing juveniles to be sentenced as adults should be in force in time to deal with those responsible for this horrific crash. That brings us to the bill presently before honourable members.

Currently, section 16 of the Young Offenders Act enables the Director of Public Prosecutions to lay charges against a youth in a higher court, rather than the Youth Court, if the youth is charged with a major indictable offence and if the Director of Public Prosecutions is of the opinion that the youth poses an appreciable risk to the safety of the community and should therefore be dealt with as an adult.

The current law, however, sets out separate statutory objects and policies to apply when sentencing young offenders, as distinct from the principles that apply when sentencing adults. This approach was developed to recognise the significant difference in youths’ cognitive development, their lower capacity for self-regulation and that they are far more susceptible to peer pressure, amongst other things. The relevant provisions in section 3 stipulate that the following principles apply:

(2a) In imposing sanctions on a youth for illegal conduct—

(a) regard should be had to the deterrent effect any proposed sanction may have on the youth; and

(b) if the sanctions are imposed by a court on a youth who is being dealt with as an adult (whether because the youth’s conduct is part of a pattern of repeated illegal conduct or for some other reason), regard should be had to—

(i) the deterrent effect any proposed sanction may have on other youths; and

(ii) the balance to be achieved between—

(A) the protection of the community; and

(B) the need to rehabilitate the youth.

The bill before the chamber displaces these principles in situations where a court is sentencing a youth who is being dealt with as an adult. This will occur if their conduct is part of a pattern of repeated illegal conduct or for some other reason.

The implications of the bill are that any young offender sentenced in a higher court will be punished according to the same sentencing principles that apply to adult offenders. This results in community safety being the primary consideration as opposed to rehabilitation. This aligns with the recently passed Sentencing Bill 2017, which is not yet in operation but which sets out that the primary purpose of sentencing a defendant is to protect the safety of the community.

I note that the bill does not amend section 29 of the Young Offenders Act. This means that when a youth is committed to the Supreme Court or District Court for trial or to be sentenced, the court can do one of the following:

deal with the youth as an adult;

make any order in relation to sentencing the youth that may be made by the Youth Court; or

remand the youth to the Youth Court for sentencing.

It is only in circumstances where a decision is made to deal with the youth as an adult in a higher court that the new provisions in the bill apply. The court still retains the discretion to refer the youth back to the Youth Court for sentencing, in which case the usual sentencing principles regarding youths will apply. The Liberal Party takes comfort from the fact that this discretion remains and has not been removed by the government’s bill. In essence, it will ensure that only appropriate cases are dealt with by higher courts in circumstances such as the defendant’s antecedents justify this course of action.

The Liberal Party acknowledges the many submissions both to the Attorney and the Liberal Party. It has given careful consideration to those. As the Hon. Mr Parnell said, the Liberal Party has had an ongoing dialogue with the Attorney, as you would expect. I will speak more on that during the committee stage in relation to the amendments that the Liberal Party is putting forward, which I understand the government accepts.

See full session on Hansard

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