Victorian Numbered Acts

JUSTICE LEGISLATION AMENDMENT (CRIMINAL APPEALS) ACT 2019 (NO. 44 OF 2019) - SECT 8

    (1)     For section 429(1) of the Children, Youth and Families Act 2005 substitute —

    "(1)     In determining an appeal under section 427, 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 (1B) also permits the appellate court to consider other matters.

    (1A)     Without limiting subsection (1), the appellate court may consider the following—

        (a)     if the respondent 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 respondent, 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 respondent at the sentencing hearing, a transcript of that evidence.

    (1B)     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 respondent; and

              (ii)     concerns the circumstances of the respondent; and

        (b)     any submissions made during the hearing of the appeal; and

        (c)     if there is a factual issue in dispute that the appellate court considers relevant and necessary to determining the appeal, any other evidence given before the Children's Court in the summary hearing.

    (1C)     For the purposes of subsections (1), (1A) and (1B), the appellate court may inform itself of what evidence or other material was before the Children's Court in any way it sees fit.

    (1D)     In determining an appeal under section 427—

        (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.

    (1E)     For the purposes of subsection (1D), 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.

    (1F)     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 given 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.".

    (2)     For section 429(2) of the Children, Youth and Families Act 2005 substitute —

    "(2)     If the appellate court allows an appeal referred to in subsection (1), the court—

        (a)     must set aside the sentence; and

        (b)     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.".