The Law Handbook 2024

Chapter 1.4: The Children’s Court 43 a finding of guilt listed on their record. Diversion can only be ordered by the court if the prosecution consents. For more information, see www. childrenscourt.vic.gov.au/criminal-division/youth- diversion-service. Sentencing in the Children’s Court The sentencing process Once there has been a finding of guilt, the magistrate or judge will want to know as much as possible about the young person before deciding which sentence is appropriate. This information – provided by the young person’s lawyer and by character witnesses – could include: • why the young person has appeared at the Children’s Court previously, if it is felt such explanation will help; • whether there are any extenuating circumstances; for example, the young person may have played a minor role in the offence; • whether the court should be lenient because of difficulties the young person has had; for example, at home or at school; • whether the young person is otherwise of good character; and • whether the young person is likely to reoffend. The CYF Act (s 362(1)) states that a magistrate or judge must take into account the following considerations when sentencing a young person: • the need to strengthen and preserve the relation­ ship between the child and their family; • the desirability of allowing the child to live at home; • the desirability of allowing the child’s education, training or employment to continue uninterrupted; • the need to minimise the stigma to the child resulting from a court decision; • the suitability of the sentence to the child; • if appropriate, the need to ensure that the child is aware that they must bear responsibility for unlawful behaviour; and • for very serious offences, or otherwise if appropriate, the need to protect the community from the violent or wrongful acts of the child. The police may also make a submission about sentencing (s 358(1)(e)). The young person’s lawyer can tell the court if they disagree with what the police say. The magistrate may also take into account a victim impact statement (s 359). Sentencing options The magistrate may: 1 Without conviction, dismiss the charge . This usually happens if the offence is trivial or if there are special circumstances. 2 Without conviction, dismiss the charge with the young person giving an undertaking – for up to six months or, in exceptional circumstances, 12 months – to do, or not to do, the acts specified in the undertaking. 3 Without conviction, dismiss the charge with the young person giving an accountable undertaking that applies for up to six months or, in exceptional circumstances, 12 months. 4 Without conviction, place the young person on a good behaviour bond for a period not exceeding one year – or, not exceeding 18 months if the young person is 15 or over and the circumstances are exceptional. The bond involves an amount of money that is less than half of the maximum possible fine and a promise to be of good behaviour and to attend court again if required. There may be other conditions. If a bond is breached, the young person may be required to pay the amount of the bond or be further dealt with on the original charge(s). 5 With or without conviction, impose a fine . As at 1 July 2023, if the young person is under 15, a fine cannot be more than $192.31 for one offence or $384.62 for multiple offences. If the young person is 15 or over, the amounts are $961.55 and $1,923.10 respectively. In imposing a fine, a magistrate must consider the financial circumstances of the young person. An instalment order may be made for the payment of the fine. If the young person does not pay the fine, a magistrate may: a give them more time to pay; b vary the instalment order; c order that the sheriff seize property of the young person; d release the young person on a probation order or youth supervision order for a period of not more than three months; or e order the fine be enforced.