Queensland Consolidated Acts

YOUTH JUSTICE ACT 1992 - SECT 150

150 Sentencing principles

(1) In sentencing a child for an offence, a court must not have regard to—

(a) any principle that a detention order should only be imposed as a last resort; or

(b) any principle that a sentence that allows the child to stay in the community is preferable.

(2) In sentencing a child for an offence, a court must have primary regard to 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 .

(3) 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

(ba) the matter to which the court must have primary regard under subsection (2) ; and

(c) the special considerations stated in subsection (4) ; and

(d) the nature and seriousness of the offence; and

(e) the child’s criminal 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—

(i) whether the child is a victim of, or has been exposed to, domestic violence;

(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

(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.

(4) 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

(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.

(5) 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.

(6) 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—

(a) the effect of the domestic violence or exposure to domestic violence on the child; and

(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.

(7) 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.

(8) If required by the court for subsection (3) (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.

(8A) Without limiting the matters a court may have regard to in sentencing a child for an offence, the court may have regard to any relevant matter on the child’s traffic history under the Transport Operations (Road Use Management) Act 1995 .

(9) 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.

(10) For the purposes of the Human Rights Act 2019 , section 43 (1) , it is declared that subsection (1) has effect—

(a) despite being incompatible with human rights; and

(b) despite anything else in the Human Rights Act 2019 .

Note—

Under the Human Rights Act 2019 , section 45 (2) , this subsection expires 5 years after the commencement.

(11) In this section—

"domestic violence" see the Domestic and Family Violence Protection Act 2012 , section 8 .

"exposed" , for a child in relation to domestic violence, see the Domestic and Family Violence Protection Act 2012 , section 10 .

"relevant serious offence" means an offence against—

(a) the following provisions of the Criminal Code —

(i) sections 302 and 305 ;

(ii) sections 303 and 310 ;

(iii) section 320 ;

(iv) section 323 ;

(v) section 328A ;

(vi) section 339 ; and

(b) the Transport Operations (Road Use Management) Act 1995 , section 83 .

"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.