Criminal division – sentencing

11.13 Breach of sentencing orders made under the Sentencing Act

Proceedings for breach of sentencing orders made under the Sentencing Act 1991 (Vic) are commenced by a charge alleging an offence: see ss.79(1) [adjourned undertaking], 47(1) [CBO], 31(1) [suspended sentence], 26(1) [ICO] & 18W(1) [CCTO]. The substantive powers to deal with any such breach which is found proved are also set out in the Sentencing Act: see ss.79(4) [adjourned undertaking], 47(3A) [CBO], 31(5) [suspended sentence], 26(3A) [ICO] & 18W(5) [CCTO].
If such a proceeding is commenced on or after 01/07/2005 against a defendant who is still 17 years of age, a curious situation arises. Under s.585(1) of the CYFA, such a charge must be transferred to the Children’s Court because the defendant is a “child” within the amended definition of “child” in s.3(1) of the CYFA. But s.4 of the Sentencing Act provides: “This Act applies to all courts except the Children’s Court.” So even though the breach proceeding has to be transferred to the Children’s Court, that court has no power to deal directly with it. However, the breach is likely to be treated as an aggravating factor by the Children’s Court when sentencing on the breaching offences. This anomalous situation will gradually wear out as the transitional provisions become less and less relevant and the writer believes, on balance, that it is a better alternative than having the breach offences heard in one court and the breach itself heard in another.

11.14 Sunset provision for Children's Court priors

Children's Court prior criminal orders effectively expire after 10 years. So far as it is relevant to criminal charges and orders, s.584 of the CYFA provides:

1. 
   If a person has appeared before the Court charged with an offence, the fact of the charge or of any order made in respect of the charge must not be given in evidence against the person in any legal proceeding within the meaning of s.3 of the Evidence Act 1958 (other than a proceeding in the Children’s Court) after the end of 3 years from the date of the charge.
   
2. 
   Sub-section (1) does not apply if that fact is relevant to the facts in issue in the proceeding or to matters necessary to be known in order to determine whether or not those facts existed.
   
3. 
   Despite sub-section (1), if a person is found guilty by a court of an offence, evidence may be given to the court of an order of the Criminal Division in relation to an offence committed by the person, if the order was made not more than 10 years before the hearing at which it is sought to be proved.
   

Section 376(1) of the Crimes Act 1958 reinforces s.584 of the CYFA. It provides that in an indictment or presentment for an indictable offence it shall be lawful to add to the presentment an averment that the offender had one or more previous convictions. Prior conviction is broadly defined in s.376(4) as:

"a prior conviction or finding of guilt by a court (whether in or out of Victoria), including a conviction or finding of guilt consequent on which is made-

(a) an order of a court releasing a person on an adjournment without recording a conviction; or

(b) a community-based order-

but does not include a conviction or finding of guilt by a children's court (whether in or out of Victoria) made more than 10 years prior to the hearing at which it is sought to be proved."

11.15 The “ROPES” Program

"A commitment NOT a task”

Leading Senior Constable Mick O’Meara APM (Victoria Police State Ropes Program Co-ordinator)

11.15.1 The program

The ROPES program is a joint venture between Victoria Police, the Children’s Court of Victoria and municipal youth workers. It is the brainchild of Senior Constable Mick O’Meara, from whose 2007 Report the material in this section is taken. One of the program’s primary objectives is to turn a young offender’s negative contact with police and courts into a positive outcome. The program brings together the young offender and the police informant in a series of physical challenges requiring true trust and co-operation, designed to break down the barriers between them and to help each to see things from the other’s perspective.

11.15.2 The target group & eligibility criteria

The ROPES program is targeted at young persons aged between 12 & 17 - and hence falling within the jurisdiction of the Children’s Court of Victoria - who have little or no criminal history. The young persons must have agreed to participate in ROPES and must either have been cautioned under the Police Cautioning Program or referred to the program from one of the following Children’s Courts: Melbourne, Collingwood NJC, Ringwood, Sunshine, Wonthaggi, Geelong, Frankston, Broadmeadows, Heidelberg, Dandenong, Sale, Bairnsdale or Bendigo. Additionally, some young people who have been displaying anti-social behaviour patterns are also accepted into the program even though they have not yet come within the criminal justice system.
The eligibility criteria for a young person to be accepted on to the ROPES program are as follows:

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  The young person must be aged between 12 & 17 at the time of the commission of the offence or the engagement in anti-social behaviour.
  
• 
  The offence must be triable summarily.
  
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  The informant must deem the young person to be a suitable candidate for the ROPES program.
  
• 
  The young person must admit the offence.
  
• 
  The young person must have received no more than 2 past cautions or is appearing before the Children’s Court for the first time.
  
• 
  The young person has not previously participated in the ROPES program.
  
• 
  The offence is not one punishable by a minimum or fixed sentence and/or penalty, including cancellation or suspension of a driver licence or permit.
  
• 
  The young person and the parents/guardian agree to the young person participating.
  
• 
  If the young person has been charged, the presiding judicial officer deems the ROPES program as suitable and adjourns the case to enable the young person to participate in the program.