The sentencing process
Once there has been a finding of guilt, the magistrate or judge A document that sets out what a person wants to happen to their money and other property after they die. 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 An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. previously, if it is felt such explanation will help;
- whether there are any extenuating circumstances; for example, the young person may have played a In Victoria, a child or young person under 18. See also infant. role in the A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious).;
- 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 A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. (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 relationship 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 A statement made to the court by a victim of a crime. It sets out details of injury, loss or damage caused by the crime. (s 359).
The magistrate may:
- Without conviction, dismiss the (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case.. This usually happens if the offence is trivial or if there are special circumstances.
- 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.
- 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.
- Without conviction, place the young person on a good behaviour (1) An undertaking by someone to do or not do something, especially a good behaviour bond, which can be part of a sentence given by a court. (2) A tenant’s payment of money to a landlord at the start of a tenancy. The bond is held in case there is any damage to the property or the tenant fails to pay rent. 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).
- With or without conviction, impose a fine. As at 30 June 2021, if the young person is under 15, a fine cannot be more than $165.22 for one offence or $330.44 for multiple offences. If the young person is 15 or over, the amounts are $811.10 and $1652.20, respectively. In imposing a fine, a magistrate must consider the financial circumstances of the young person. An A court order that allows a debtor time to pay off a debt that has been proved in court. Payments may be made monthly or weekly instead of all at once. See also judgment debt. may be made for the payment of the fine. If the young person does not pay the fine, a magistrate may:
- give them more time to pay;
- vary the instalment order;
- order that the An officer of the court who is responsible for the enforcement of court orders. seize property of the young person;
- A document signed by parties ending a court action. The party who began the action agrees to drop it, often in exchange for a payment by the other party. Also called terms of settlement. the young person on a A non-custodial sentence that is served in the community and which does not involve a prison term. It requires good behaviour and supervision by a probation officer for a specified period. See also intensive correction order (ICO). order or youth An order the Children’s Court may impose upon a young person found guilty of an offence. Under this order, the young person will be supervised by a probation officer and will have to obey any other conditions the court imposes upon them. These conditions can be placed on the young person’s parents or persons with whom the young person is living. Also, a supervision order requires a person arguing substantial mental impairment in a serious criminal case to be admitted to a mental institution. for a period of not more than three months; or
- order the fine be enforced.
6. With or without conviction, place the young person on probation for up to 12 months or, if the offence is serious, up to 18 months. A probation officer is appointed to supervise a young person. The young person must report to the probation officer as required and obey the probation officer’s reasonable directions. There are also other conditions of probation, such as the requirement to be of good behaviour. The probation officer should be seen as someone whose job it is to assist the young person, but who has the power to take the case back to court if the young person breaches their probation conditions. A probation order may extend to the young person’s 21st birthday.
7. With or without conviction, place the young person on a youth supervision order for up to 12 months or, if the offence is serious, up to 18 months. A youth supervision order involves more intensive supervision than probation. It may include community work as directed by the Victorian Government Department of Families, Fairness and Housing.
8. With conviction, place a young person over 15 years but under 19 on a youth attendance order for up to 52 weeks. A magistrate can only impose a youth attendance order if they would otherwise be considering a period of detention in a youth detention centre. The order involves attendance at a youth attendance project for up to 10 hours per week (up to four hours may involve community Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence.). A breach of a youth attendance order usually results in a A prison sentence.. A youth attendance order can extend to a young person’s 21st birthday.
9. With conviction, place the young person on a youth control order for up to 12 months (in circumstances where the court considers that the young person would otherwise be sentenced to detention). The youth control order is intended to provide judicially supervised intensive supervision and to penalise the child by restricting their liberty.
10. With conviction, sentence a young person under 15 to detention in a youth residential centre. A magistrate must be satisfied that the circumstances and nature of the offence(s) are serious and that no other sentence is appropriate. A youth residential centre sentence cannot exceed one year for a single offence, or two years for multiple offences. The youth residential centre for both young men and young women is in Parkville.
11. With conviction, sentence a young person who is over 15 years to detention in a youth detention centre for a maximum of three years for one offence and four years for multiple offences. A magistrate must be satisfied that no other sentence is appropriate. The youth detention centres are in Parkville.
12. If another person’s property was damaged or not recovered as a result of an offence, a magistrate may order that the young person pay compensation or make Making good, returning things to the way they were. For example a court can order restitution of stolen goods to someone who is entitled to them; a party to a contract that has been rescinded is entitled to restitution that restores the status quo. to a maximum amount of $1000 (s 417 CYF Act). In doing so, a magistrate must take into account the young person’s financial circumstances.
A magistrate must not impose a sentence unless they are satisfied that it is not appropriate to impose a lesser sentence (s 361).