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 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 victim impact statement (s 359).
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 2019, 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 $826.10 and $1652.20, 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.
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 DHHS.
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 service). A breach of a youth attendance order usually results in a custodial 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 restitution 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).