Victorian Current Acts Victorian Current ActsS. 423(1) amended by No. 68/2009 s. 68(1)(p).
(1) In this section, "breach of a" sentence includes default in the payment of a fine or of any instalment under an instalment order.
S. 423(2) amended by No. 68/2009 s. 68(1)(q)(i).
(2) A proceeding for breach of a sentence must be commenced in the Children's Court—
S. 423(2)(a) amended by No. 68/2009 s. 68(1)(q)(ii).
(a) whether the sentence was imposed by the Children's Court or by the Supreme Court or the County Court, on appeal or otherwise; and
(b) whether the person against whom the proceeding is commenced is aged 19 years or more.
S. 423(3) amended by No. 68/2009 s. 68(1)(r)(i).
(3) If the proceeding for breach of a sentence is against a child who is under the age of 19 years when the proceeding for breach is commenced, the Children's Court must hear and determine the proceeding unless—
S. 423(3)(a) amended by No. 68/2009 s. 68(1)(r)(ii).
(a) the sentence was imposed by the Supreme Court or the County Court and the child does not consent to the Children's Court hearing the proceeding for breach; or
S. 423(3)(b) amended by No. 68/2009 s. 68(1)(r)(iii).
(b) the Court considers that in all the circumstances of the case it is appropriate to transfer the proceeding to the court that imposed the sentence.
S. 423(4) amended by No. 68/2009 s. 68(1)(s).
(4) If the proceeding for breach of a sentence is against a person who is aged 19 years or more when the proceeding for breach is commenced, the Children's Court must transfer the proceeding (other than a proceeding for breach of an accountable undertaking) to the Magistrates' Court or to the court that imposed the sentence unless the Children's Court considers that in all the circumstances of the case it is appropriate for the Children's Court to hear and determine the proceeding, having regard to the matters referred to in subsection (5).
(5) For the purposes of subsection (4), the Court must have regard to—
(a) the age of the person;
(b) the nature and circumstances of the alleged breach;
(c) the stage of the proceeding for breach;
(d) whether the person is the subject of another proceeding in any other court;
S. 423(5)(e) amended by No. 68/2009 s. 68(1)(t).
(e) the availability of appropriate sentences in the other court if the breach were proved;
(f) whether the person prefers to be dealt with in the Children's Court or any other court;
(g) any other matter that the Court considers relevant.
S. 423(6) amended by No. 68/2009 s. 68(1)(u).
(6) A proceeding must not be transferred on the sole ground that the sentence was imposed by another court.
S. 423(7) amended by No. 68/2009 s. 68(1)(v)(i).
(7) If the person does not consent to the Children's Court hearing and determining the proceeding or the Court considers that the proceeding should be transferred, the Court must discontinue the proceeding and order that it be transferred to the Magistrates' Court or to the court that imposed the sentence, as the case may be, and in the meantime may—
(a) permit the person to go at large; or
(b) grant the person bail conditioned for the appearance of the person before the Supreme Court, the County Court or the Magistrates' Court, as the case may be, at the time and place at which the proceeding is to be heard; or
S. 423(7)(c) amended by No. 68/2009 s. 68(1)(v)(ii).
(c) remand the person in custody or deal with the person in accordance with section 333 of the Criminal Procedure Act 2009 until the proceeding is heard by the Supreme Court, the County Court or the Magistrates' Court, as the case may be.
(8) If a proceeding is transferred to the Magistrates' Court under this section—
S. 423(8)(a) amended by No. 68/2009 s. 68(1)(w).
(a) the Magistrates' Court may sentence the person as if the Magistrates' Court had just been satisfied of the person's guilt of the offence in respect of which the sentence was imposed; and
(b) for that purpose, the Magistrates' Court has jurisdiction, whether or not the Magistrates' Court would otherwise have had jurisdiction to deal with the offence.
S. 423(9) substituted by No. 68/2009 s. 68(2).
(9) This section applies despite section 426(5).
Ch. 5 Pt 5.4 (Heading and ss 424– 430) amended by No. 8/2008 s. 22(2)(b)(c), substituted as Ch. 5 Pt 5.4 (Headings and ss 424– 430ZH) by No. 68/2009 s. 69.
Part 5.4—Appeals
Division 1—Appeal by offender to the County Court or Trial Division of the Supreme Court
S. 424 substituted by No. 68/2009 s. 69, amended by Nos 3/2016 s. 52, 1/2022 s. 43.