Victorian Numbered Acts Victorian Numbered ActsFor Division 1 of Part 5.4 of the Children, Youth and Families Act 2005 substitute —
(1) Subject to subsections (2) and (3), a person convicted of an offence by the Children's Court in a summary proceeding in the Criminal Division may appeal to the County Court against either or both of—
(a) the conviction; and
(b) the sentence.
Note
See the definitions of conviction and sentence in section 3(1).
(2) Leave to appeal is required from the County Court for an appeal against conviction if the person was convicted following a plea of guilty.
(3) If the Children's Court was constituted by the President or the Chief Magistrate who is a dual commission holder, the appeal or application for leave to appeal is to be made to the Trial Division of the Supreme Court.
(1) An appeal under section 424, or an application for leave to appeal under that section, is commenced by filing a notice of appeal or an application for leave to appeal, as the case requires, with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the sentence of the Children's Court is imposed.
(2) A copy of the notice of appeal or the application for leave to appeal, as the case requires, must be served on the respondent in accordance with section 392 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice or application is filed.
(3) A notice of appeal or application for leave to appeal must—
(a) state whether the appeal is against—
(i) conviction; or
(ii) sentence; or
(iii) both conviction and sentence; and
(b) state whether the appellant or applicant was convicted following a plea of guilty and, if so, whether the Children's Court gave a sentence indication; and
(c) be in the form, and include the information, prescribed by the rules of the appellate court.
(4) A notice of appeal or an application for leave to appeal must also include an undertaking signed by the appellant or applicant, in the manner prescribed by the rules of the appellate court—
(a) to appear at the appellate court to proceed with the appeal or application at a place and on a day fixed or to be fixed by the registrar of the County Court or the Prothonotary (as the case requires) and to appear at the appellate court for the duration of the appeal or application; and
(b) to give written notice without delay to the registrar of the County Court or the Prothonotary, as the case requires, of any change to the following information as appearing in the notice of appeal or application for leave to appeal—
(i) the address of the appellant or applicant;
(ii) other information prescribed in the rules of the appellate court.
(5) A notice of appeal or an application for leave to appeal filed under this section must be transmitted to the appellate court.
(1) Within 28 days after filing a notice of appeal or an application for leave to appeal against the conviction imposed by the Children's Court, the appellant or applicant must file a summary of appeal notice in the appellate court.
(2) A summary of appeal notice must—
(a) state the general grounds of appeal or application; and
(b) be in the form prescribed by the rules of the appellate court.
(1) On an application for leave to appeal, the appellate court may only grant leave to appeal if satisfied that it is in the interests of justice to do so.
(2) For the purposes of subsection (1), the appellate court may have regard to the following factors—
(a) the circumstances in which the person entered the plea;
(b) the time taken to apply for leave to appeal the conviction;
(c) any other matter that the court considers relevant.
(1) In determining an appeal against conviction under section 424, the appellate court must determine the appeal by way of rehearing—
(a) on either—
(i) the evidence given before the Children's Court in the summary hearing; or
(ii) if the whole of the recording of that evidence is unavailable, the evidence received under section 430BD(2); and
(b) on the evidence received in the appeal under section 430BE (if any); and
(c) having regard to the reasons of the Children's Court in the summary hearing.
Note
Section 430BC provides for the appellate court to make orders for the provision of transcripts and reasons.
(2) If the appellate court allows an appeal against conviction under section 424, the court must—
(a) set aside the conviction that was the subject of the appeal; and
(b) either—
(i) remit the proceeding in accordance with subsection (3); or
(ii) deal with the appeal in accordance with subsection (4).
(3) On allowing an appeal against conviction for which leave was required under section 424(2), the appellate court may remit the proceeding to the Children's Court with or without any direction in law.
Note
Section 426A provides further for these remittals.
(4) On allowing any appeal against conviction under section 424, whether or not leave was required under section 424(2), the appellate court may—
(a) dismiss the charge for the offence that was the subject of the appeal; and
(b) if—
(i) at any time in the summary hearing there was before the Children's Court a charge against the appellant other than the charge for the offence that is the subject of the appeal; and
(ii) the appellant could have been found guilty of that other charge; and
(iii) the appellate court is satisfied, beyond reasonable doubt, that the appellant is guilty of the offence that is the subject of that other charge—
reinstate that other charge (if necessary) and enter a judgment of conviction for that offence and impose a sentence for that offence that is no more severe than the sentence that was imposed for the offence that was the subject of the appeal; and
(c) vary a sentence that—
(i) was imposed for an offence that was not the subject of the appeal at or after the time when the appellant was sentenced for the offence that was the subject of the appeal; and
(ii) took into account the sentence for the offence that was the subject of the appeal; and
(d) exercise any power which the Children's Court could have exercised.
(5) For the purposes of subsection (4), the appellate court may, despite anything to the contrary in this Act, make a probation order, youth supervision order or youth attendance order in respect of a person even though at the time of making that order the person is of or above the age of 19 years but under 21 years.
(6) The power under subsection (4)(c) to vary the sentence referred to in that provision may still be exercised even if the sentence imposed by the Children's Court is an aggregate sentence of detention.
(7) If, at the conclusion of an appeal being dealt with under subsection (4), the appellant remains convicted of more than one offence, the appellate court may impose any sentences that the Children's Court could have imposed for those offences.
Note
This section previously provided for appeals in which charges were reheard de novo. The Justice Legislation Amendment (Criminal Appeals) Act 2019 abolished those de novo appeals and replaced them with these appeals, which instead are by way of rehearing on the evidence given before the Children's Court. (Additionally, sections 430BD and 430BE provide for the receipt of further evidence in certain circumstances.)
(1) This section applies if, on an appeal against conviction under section 424, the appellate court remits the proceeding to the Children's Court under section 426(3).
(2) On the proceeding being remitted—
(a) the following charges are reinstated—
(i) each charge for which a conviction was set aside on the appeal; and
(ii) each charge described in subsection (3); and
(b) the following sentences are set aside—
(i) each sentence imposed by the Children's Court in respect of a conviction that was set aside on appeal; and
(ii) each sentence imposed by the Children's Court on any other charge in the summary hearing from which the appeal was brought.
(3) A charge is reinstated under subsection (2)(a)(ii) if—
(a) it was contained in a charge-sheet that also contained a charge for which a conviction was set aside on the appeal; and
(b) in the summary hearing, the charge was not struck out for non-compliance with section 344A; and
(c) at the conclusion of the appeal, the appellant does not remain convicted of the charge.
(4) The Children's Court must—
(a) summarily hear and determine each charge reinstated under subsection (2)(a); and
(b) re-sentence the offender on each charge for which the sentence is set aside under subsection (2)(b)(ii).
(1) In determining an appeal against sentence under section 424, the appellate court must determine the appeal on the evidence and other material that was before the Children's Court for the sentencing hearing.
Note
Subsection (3) also permits the appellate court to consider other matters.
(2) Without limiting subsection (1), the appellate court may consider the following—
(a) if the appellant pleaded guilty, the agreed statement of facts on which the Children's Court relied to impose the sentence that is the subject of the appeal;
(b) the criminal record of the appellant, if any;
(c) any documentary evidence that was before the Children's Court for the sentencing hearing;
(d) if oral evidence was taken from a witness or the appellant at the sentencing hearing, a transcript of that evidence.
(3) The appellate court may also consider—
(a) other evidence, material or information that—
(i) relates to matters that occurred after the Children's Court sentenced the appellant; and
(ii) concerns the circumstances of the appellant; and
(b) any submissions made during the hearing of the appeal; and
(c) if an appeal was also brought against the conviction to which the sentence relates, the evidence received in that appeal under section 430BD or 430BE (if any); and
(d) if there is a factual issue in dispute that the court considers relevant and necessary to determining the appeal, any other evidence given before the Children's Court in the summary hearing.
(4) For the purposes of subsections (1), (2) and (3), the appellate court may inform itself of what evidence or other material was before the Children's Court in any way it sees fit.
(5) In determining an appeal against sentence under section 424—
(a) the appellate court must allow the appeal if it finds that there are substantial reasons to impose a different sentence from that imposed by the Children's Court; and
(b) must dismiss the appeal in any other case.
(6) For the purposes of subsection (5), in determining whether there are substantial reasons to impose a different sentence the appellate court must have regard to—
(a) the reasons of the Children's Court in the summary hearing; and
(b) the need for a just and fair outcome.
(7) The determination of substantial reasons for the purposes of this section—
(a) does not require a specific error of law to be identified; and
(b) is not satisfied merely by the identification of a deficiency in the sentencing remarks made by the magistrate or the President (as the case requires) in the Children's Court in the summary hearing; and
(c) requires more than it being merely arguable that a different sentence should be imposed; and
(d) does not require the appellate court to be satisfied that the sentence was unreasonable or plainly unjust.
(8) If the appellate court allows an appeal against sentence under section 424, the court—
(a) must set aside the sentence; and
(b) subject to subsection (9), may impose any sentence which the court considers appropriate and which the Children's Court could have imposed; and
(c) may exercise any power which the Children's Court could have exercised.
(9) If an appellant appeals under section 424 against an order made under section 363, 365 or 367, the appellate court may—
(a) dismiss the charge against the appellant; or
(b) make an order in the same terms as the order of the Children's Court—
but must not impose any other sentence.
Note
Orders under sections 363, 365 and 367 are orders for non-accountable undertakings, accountable undertakings and good behaviour bonds respectively.
(10) For the purposes of subsection (8), the appellate court may, despite anything to the contrary in this Act, make a probation order, youth supervision order or youth attendance order in respect of a person even though at the time of making that order the person is of or above the age of 19 years but under 21 years.
(1) The appellate court may backdate a sentence imposed under section 426 or 426B to a date not earlier than the date of the sentence of the Children's Court that was set aside on the appeal.
(2) A sentence imposed under section 426 or 426B is for all purposes to be regarded as a sentence of the appellate court.
If, on an appeal under section 424, the appellate court is considering imposing a more severe sentence than that imposed by the Children's Court, the appellate court must warn the appellant, as early as possible during the hearing of the appeal, that the appellant faces the possibility that a more severe sentence may be imposed than that imposed by the Children's Court.".