(1) In sentencing a child for an offence, a court must have regard to—
(a)
subject to this Act, the general principles applying to the sentencing of all
persons; and
(b) the youth justice principles; and
(c) the special
considerations stated in subsection (2) ; and
(d) the nature and seriousness
of the offence; and
(e) the child’s previous offending history; and
(ea)
the hardship that any sentence imposed would have on the child, having regard
to the child’s characteristics, including disability, gender identity,
parental status, race, religion, sex, sex characteristics and sexuality; and
(eb) regardless of whether there are exceptional circumstances, the probable
effect that any sentence imposed would have on—
(i) a person with whom the
child is in a family relationship and for whom the child is the primary
caregiver; and
(ii) a person with whom the child is in an informal care
relationship; and
(iii) if the child is pregnant—the child of the
pregnancy; and
(f) the presence of any aggravating or mitigating factor
concerning the child; and
(g) without limiting paragraph (f) , whether the
child committed the offence—
(i) while released into the custody of a
parent, or at large with or without bail, for another offence; or
(ii) after
being committed for trial, or awaiting trial or sentencing, for another
offence; and
(ga) also without limiting paragraph (f) , the following
matters—
(ii) whether the commission of the offence is wholly or
partly attributable to the effect of domestic violence, or exposure to
domestic violence, on the child;
(iii) the child’s history of being abused
or victimised; and
(h) any information about the child, including a
pre-sentence report and bail history, provided to assist the court in making a
determination; and
(ha) if the child is an Aboriginal or Torres Strait
Islander person—any cultural considerations, including the effect of
systemic disadvantage and intergenerational trauma on the child; and
(i) if
the child is an Aboriginal or Torres Strait Islander person—any submissions
made by a representative of the community justice group in the child’s
community that are relevant to sentencing the child, including, for example—
(i) the child’s connection with the child’s community, family or kin; or
(ii) any cultural considerations, including the effect of systemic
disadvantage and intergenerational trauma on the child; or
(iii) any
considerations relating to programs and services established for offenders in
which the community justice group participates; and
(j) any impact of the
offence on a victim, including harm mentioned in information relating to the
victim given to the court under the Penalties and Sentences Act 1992, section
179K ; and
(k) a sentence imposed on the child that has not been completed;
and
(l) a sentence that the child is liable to have imposed because of the
revocation of any order under this Act for the breach of conditions by the
child; and
(m) the fitting proportion between the sentence and the offence.
(2) Special considerations are that—
(a) a child’s age is a mitigating
factor in determining whether or not to impose a penalty, and the nature of a
penalty imposed; and
(b) a non-custodial order is better than detention in
promoting a child’s ability to reintegrate into the community; and
(c) the
rehabilitation of a child found guilty of an offence is greatly assisted by—
(i) the child’s family; and
(ii) opportunities to engage in educational
programs and employment; and
(d) a child who has no apparent family support,
or opportunities to engage in educational programs and employment, should not
receive a more severe sentence because of the lack of support or opportunity;
and
(e) a detention order should be imposed only as a last resort and for the
shortest appropriate period.
(3) In determining the appropriate sentence for
a child convicted of the manslaughter of a child under 12 years, a court must
treat the victim’s defencelessness and vulnerability, having regard to the
victim’s age, as an aggravating factor.
(3A) In determining the appropriate
sentence for a child who is a victim of, or has been exposed to,
domestic violence, the court must treat as a mitigating factor—
(b) if the commission of the offence is wholly or partly attributable to
the effect of the domestic violence, or exposure to domestic violence, on the
child—the extent to which the commission of the offence is attributable to
the effect of the violence or exposure.
(3B) In determining the appropriate
sentence for a child convicted of a relevant serious offence committed in
relation to a pregnant person that resulted in destroying the life of the
person’s unborn child, the court must treat the destruction of the unborn
child’s life as an aggravating factor, unless the court considers it is not
reasonable because of the exceptional circumstances of the case.
(4) If
required by the court for subsection (1) (i) , the representative must advise
the court whether—
(a) any member of the community justice group that is
responsible for the submission is related to the offender or the victim; or
(b) there are any circumstances that give rise to a conflict of interest
between any member of the community justice group that is responsible for the
submission and the child or victim.
(4A) In sentencing a child for an
offence, a court may receive any information, or a sentencing submission made
by a party to the proceedings, it considers appropriate to enable it to impose
the proper sentence or make a proper order in connection with the sentence.
"sentencing submission" , made by a party, means a submission stating the
sentence, or range of sentences, the party considers appropriate for the court
to impose.
