Statutes Amendment (Youths Sentenced as Adults) Bill

Second Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (17:35): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

The Statues Amendment (Youths Sentenced as Adults) Bill 2017 provides that section 3 of the Young Offenders Act 1993 will not apply in the sentencing of a young offender being dealt with as an adult before a higher court. The Bill makes it plain that any young offender sentenced as an adult in a higher court should be sentenced on the same principles as an adult offender with the safety of the community as the paramount consideration. This mirrors the approach for adult offenders in the Sentencing Act 2017.

Section 3 of the Young Offenders Act 1993 presently requires a paramount rehabilitative focus in the sentencing of young offenders. Section 3(1) provides that the overriding object of this Act 'is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential.' We have recently seen the court declare that, reflecting the existing Young Offenders Act 1993 and the linked case law, even when sentencing a young person in a higher court as an adult, the court continues to be bound by the overriding principles of rehabilitation set out in section 3 of the Young Offenders Act 1993.

The Bill represents a shift in how a small number of young persons are to be sentenced. There were only ten young offenders sentenced as adults in the higher courts identified from the available records in the three years between 2013 and 2015 inclusive. The Bill is not aimed at the typical young offender but rather at enhancing public protection from this very small group of serious young offenders, whose offending is so bad they are to be sentenced as adult offenders and whose offending is so bad they should not receive the mitigating benefit of the usual paramount rehabilitative focus of section 3 of the Young Offenders Act 1993 Act in sentencing

There is wide concern over the perceived inadequacy of sentences (and the underlying principles to be applied) imposed on young offenders who have committed grave offences and are dealt with as an adult offender. The Government shares these concerns. There is a need for a stronger focus on community protection.

The present overriding rehabilitative focus in the Young Offenders Act 1993 is problematic to a young offender who is being dealt with as an adult in a higher court where he or she has committed a homicide related offence, a grave offence, or because the offence is part of a pattern of repeated offending. It is inconsistent to purport to deal with a young offender who has committed a grave crime as an adult in a higher court but then apply the sentencing principles in section 3 emphasising rehabilitation. Other jurisdictions, both in Australia and overseas, provide for various specialist adult sentencing regimes for certain young offenders who have committed grave or repeated crimes and/or are a real risk to the safety of the community that may dilute or, as in Western Australia, displace the usual overriding focus on rehabilitation for certain young offenders in favour of considerations of public protection, punishment and/or deterrence.

The intention of the Bill is that, mirroring the Sentencing Act 2017 (once it commences), the paramount consideration of a court when determining the sentence for a young offender who is being dealt with as an adult is the protection of the safety of the community. The Bill provides that this paramount consideration should outweigh any other consideration, object or statutory principle, including the need to rehabilitate the youth.

A young offender being sentenced as an adult offender in a higher court will be sentenced according to the law that applies in sentencing an adult offender. The Bill will not necessarily result in a young offender receiving the same sentence as an adult offender would have. A court will still, as with any adult offender under the Sentencing Act 2017, be able to take into account any of a wide range of factors such as the circumstances of the offence and the offender's age, character, intellectual or physical condition and remorse. General sentencing considerations such as deterrence and rehabilitation also remain relevant under the Sentencing Act 2017. The application of those principles and factors and the resulting sentence will depend on the particular case and relevant offender. A court may still as a secondary factor attach more weight to a young offender's age and character than for an adult offender. This is not unique as a court may also attach more weight to the age and character of say an 85 year old over a 30 year old offender.

The Bill also amends section 31A(a1) the Criminal Law (Sentencing) Act 1988.

Section 31A(a1) states that a number of provisions do not apply in relation to a youth (whether or not the youth is sentenced as an adult or is sentenced to detention to be served in a prison or is otherwise transferred to or ordered to serve a period of detention in a prison), being sections 32(5)(ab), 32(5)(ba), 32(5a) and 32A.

The Bill amends section 31A(a1) so that these provisions do apply to a young person sentenced as an adult.

As a result, for a young person sentenced as an adult for murder, the requirement in section 32(5)(ab) to set a mandatory minimum non-parole requirements for murder of 20 years will be applied to a youth sentenced as an adult. In addition, for a young person being sentenced as an adult for serious offences against the person, the mandatory minimum non-parole period of four-fifths the length of the sentence as required in section 32(5)(ba) must be applied.

The Bill will also amend section 46(1) of the Sentencing Act 2017 (once it commences) to mirror these same changes.

The Bill provides that it will apply to any young offender being sentenced as an adult in a higher court after the Bill receives Royal Assent, whether the offence was committed before and after the Bill comes into effect.

The Bill is a necessary and proportionate measure to reduce crime and support public protection in relation to the most serious young offenders.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Young Offenders Act 1993

4—Amendment of section 3—Objects and statutory policies

Section 3 of the Young Offenders Act 1993 (the YOA) sets out the objects and statutory policies of that Act. The object is to 'secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential', and the powers conferred by the YOA are to be directed towards that object with proper regard to the statutory policies set out therein. Proposed new subsection (4) provides that section 3 does not apply to a court imposing sanctions 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.

Part 3—Amendment of Criminal Law (Sentencing) Act 1988

5—Amendment of section 31A—Application of Division to youths

The proposed amendment to section 31A is consequential on the amendment to the YOA.

Part 4—Amendment of Sentencing Act 2017

6—Amendment of section 46—Application of Division to youths

Section 46 of the Sentencing Act 2017 mirrors section 31A of the Criminal Law (Sentencing) Act 1988 and is necessary because, in due course, the Sentencing Act 2017 will repeal the Criminal Law (Sentencing) Act 1988.

Schedule 1—Transitional provision

1—Transitional provision

The transitional provision makes it clear that an amendment effected by this measure applies to a youth who is being sentenced as an adult after the commencement of the amendment, whether the offence in respect of which the youth is being sentenced occurred before or after that commencement.

Debate adjourned on motion of Hon. D.W. Ridgway.