Adult Gaol / Jail (Immediate Custodial Sentences)
Section 11 through to section 18 of the Sentencing Act 1991 deal with the mechanisms that relate to the imposition of an immediate term of imprisonment. Immediate gaol sentences must be with conviction.
Immediate gaol sentences can be:
- imposed on their own if the period of incarceration is under 12 months. This is referred to as a “straight sentence”
- in combination with a Community Corrections Order if under 12 months
- with parole if over 12 months.
For more information see Immediate gaol sentences.
Youth Justice Centre Orders:
Youth justice centre orders are available for adult offenders no older than 21 years of age at the time of sentence.
Youth justice centre orders always result in a conviction.
There are a number of considerations a Magistrate or Judge must take into account before imposing a youth justice centre order.
The Court must consider
- That there are reasonable prospects for the rehabilitation of the young offender (young offender being defined in Sentencing Act 1991 someone at the time of sentence that is under the age of 21).
- That the young person is particularly impressionable, immature or likely to subjected to undesirable influences in adult prison and
- The nature of the offence and the age, character and past history of the young offender
There are certain offences where a youth justice centre order is not available regardless of the age of the offender.
Youth justice centre orders are far more rehabilitative in nature than adult prison and often result in longer periods of parole.
The legislation:
SENTENCING ACT 1991 – SECT 32
Youth justice centre or youth residential centre order
- Subject to subsections (2A), (2B), (2C) and (2D), if a sentence involving confinement is justified in respect of a young offender a court may make a youth justice centre order or a youth residential centre order if it has received a pre-sentence report and—
(a) it believes that there are reasonable prospects for the rehabilitation of the young offender; or
(b) it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
32(2) amended by Nos 48/1997 s. 17(3), 48/2006 s. 42(Sch. item 32.6), 48/2018 s. 84(3).
- In determining whether to make a youth justice centre order or a youthresidential centre order, a court must have regard to—
(a) the nature of the offence; and
32(2)(b) amended by No. 48/1997 s. 16(1).
(b) the age, character and past history of the young offender.
32(2A) inserted by No. 48/1997 s. 16(3), amended by No. 48/2006 s. 42(Sch. item 32.6).
(2A) A court must not make a Youth Justice Centre Order in respect of a young offender who at the time of being sentenced is under the age of 15 years.
32(2B) inserted by No. 48/1997 s. 17(4).
(2B) A court must not make a youth residential centre order in respect of a young offender who at the time of being sentenced is aged 15 or more.
32(2C) inserted by No. 43/2017 s. 21(2).
(2C) If a young offender is to be sentenced for a category A serious youth offence, a court must not make a youth justice centre order or a youth residential centre order in respect of the young offender unless the court is satisfied that exceptional circumstances exist.
32(2D) inserted by No. 43/2017 s. 21(2).
(2D) If—
(a) a young offender is to be sentenced for a category B serious youth offence; and
(b) the young offender has previously been convicted of another offence that is a category A serious youth offence or a category B serious youth offence —
a court must not make a youth justice centre order or a youth residential centre order in respect of the young offender unless the court is satisfied that exceptional circumstances exist.
32(3) amended by Nos 48/1997 ss 16(4), 17(5), 48/2006 s. 42(Sch. item 32.7).
- The maximum period for which a court may direct that a young offender be detained in a youth justice centre or youth residential centre is—
32(3)(a) amended by No. 48/1997 s. 16(5)(a).
(a) if the court is the Magistrates’ Court—2 years; and
32(3)(b) amended by Nos 48/1997 s. 16(5)(b), 43/2017 s. 58.
(b) if the court is the County Court or the Supreme Court—4 years.
32(4) amended by No. 48/1997 s. 16(1).
- Subsection (3) applies irrespective of how many offences the young offender is convicted of in the same proceeding.
32(5) amended by No. 48/1997 ss 16(6), 17(6).
- If—
32(5)(a) amended by No. 48/1997 ss 16(4), 17(6).
(a) a sentence of detention is imposed on a young offender already under such a sentence; and
(b) the subsequent sentence is cumulative on the prior sentence; and
(c) the aggregate of the periods of the unexpired portion of the prior sentence and the subsequent sentence exceeds the relevant maximum period set out in subsection (3)—
the subsequent sentence must be taken to be a sentence that the young offender be detained after the completion of the prior sentence for the period then remaining until that maximum period is reached.
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