Criminal division – sentencing

11.5 Deferral of sentencing

Under ss.360(2) & 414(1) of the CYFA the Court may defer sentencing a child for a period not exceeding 4 months if-

(a) it is of opinion that sentencing should, in the interests of the child, be deferred; and

(b) the child agrees to a deferral of sentencing.

It appears that the Court cannot defer sentence for a child who is custody and ineligible for bail because s.414(2)(a) requires the Court, if it defers sentence, to adjourn the case to a fixed date for sentence and release the child unconditionally or on bail.
Pursuant to s.414(2)(b), it is usual for the Court to order the preparation of a pre-sentence, or a further pre-sentence, report. In general cases, that report is usually prepared by the Youth Justice Division of the Department of Human Services under s.572(a) and an additional report may sometimes be prepared by the Children’s Court Clinic. In cases referred to the Clinic, the pre-sentence report is prepared by the Clinic under s.572(b).
Under ss.414(1) & 415(1) the Court may defer sentence for the purpose of a child’s participation in a group conference if the Court is considering imposing a sentence of probation or a youth supervision order and if-

• 
  the Court is of the opinion, after consultation with Youth Justice, that the child is suitable to participate in a group conference; and
  
• 
  the child agrees to participate in a group conference.
  

Section 416(1) gives the Court express power, on application by the child, to re-list the adjourned case at short notice if the Court considers it appropriate to do so. Under s.416(2) such notice must be given to the Court, the informant and, if appropriate, the Secretary. If a child is found guilty of an offence during the deferral period or if a group conference does not proceed, s.416(4) permits the Court to relist the adjourned case at short notice and on the adjourned hearing make any order which the Court could have made if it had not deferred sentence.

On the adjourned hearing date, s.416(3) requires the Court, in determining the appropriate sentence for the child, to have regard to-

(a) the child's behaviour during the period of deferral; and

(b) any pre-sentence report ordered; and

(c) if the child participated in a group conference, the fact of that participation; and

(d) any group conference report ordered; and

(e) any other relevant matter.

11.6 Group Conference

11.6.1 Restorative justice

In a paper entitled "Restorative Justice: Emerging Views" (The Drawing Board, An Australian Review of Public Affairs) Chris Cunneen said of restorative justice:

"Prevailing views on law and order emphasize longer and longer prison sentences in the belief that more and 'tougher' punishment will deter crime. Restorative justice begins from a different premise: the need to make an offender accountable for their actions through confronting the harm they have caused the victim, and by providing the offender with an opportunity to offer recompense for that harm…[M]any restorative justice programs actually in operation have been introduced in response to young people's criminal behaviour…In the vast majority of cases, restorative justice is translated into a system of 'conferencing', where the offender and the victim meet before a convenor and with other support persons in attendance. An 'outcome' is reached that is acceptable to the offender and the victim…All states and territories in Australia now have some type of conferencing in place for juveniles".

11.6.2 The Victorian Group Conference program

The Victorian Group Conference program is a joint venture involving the Children's Court of Victoria, Victoria Police, Victoria Legal Aid and the Department of Human Services. It consists of a formal meeting of parties affected by the young person's offending. It is based on the concepts of restorative justice and derives from a New Zealand model for the processing of juvenile offenders set out in the Children, Young Persons and their Families Act 1989 (N.Z.).
Until 2002 it remained a pilot program, contracted to Anglicare Victoria and available to only about 50 young offenders per year, limited to the Melbourne and suburban Children's Courts. In January 2003 funding was confirmed for a full program. The successful contractor to provide conferencing services, Jesuit Social Services, took over from Anglicare in July 2003.
Commencing on 23/04/2007 the Group Conference Program was given legislative standing in ss.362 & 414-416 of the CYFA and now operates state-wide.
Under ss.415(4) & 415(5) of the CYFA the purpose of a group conference is to facilitate a meeting between the child and other persons (including, if they wish to participate, the victim or their representatives and members of the child’s family and other persons of significance to the child which has the following objectives-

(a) to increase the child’s understanding of the effect of his or her offending on the victim and the community;

(b) to reduce the likelihood of the child re-offending;

(c) to negotiate an outcome plan, agreed to by the child, that is designed to assist the child to take responsibility and make reparation for his or her actions and to reduce the likelihood of the child re-offending.

Some of the following is taken from an information brochure prepared by Anglicare Victoria.

11.6.3 Goal

The primary goal of a Group Conference is to divert young people from further or more serious offending by harnessing the often untapped resources of the young person's immediate and extended family and by involving them and significant others in decision making. The aim is to address the offending behaviour of young people and help them avoid further or more serious offending by:

• 
  strengthening the young person's family and community supports;
  
• 
  making amends to the victim(s) where appropriate which can be constructive for both victim and offender; and
  
• 
  holding the young person accountable for the impact of his or her offending.
  

11.6.4 Consultation with Youth Justice

If the Court was considering imposing a sentence of probation or a youth supervision order in respect of one or more offences, it may instead consider deferring sentence for the purpose of a child’s participation in a group conference if the child agrees to participate: ss.414(1) & 415(1) of the CYFA. In that event, the Court is required to consult with Youth Justice as to whether the child is suitable to participate in a group conference. There is no formal legislative basis for determining suitability. Some of the current criteria are that the young person-

• 
  must be aged 10-17 years;
  
• 
  must plead guilty and have been found guilty by the Court;
  
• 
  is before the Court for the first time and is before the Court on charges that warrant probation or a youth supervision order;
  
• 
  would benefit from a greater awareness of the impact of his or her offending on victims and the community;
  
• 
  must, with his family, be prepared to meet with the convenor prior to the conference, attend the conference and agree to return to the Court following the conference.
  

There is no bar on young persons who have previously been subject to supervisory orders participating in the group conference program.
Although the Court must consult with Youth Justice, it is not bound by Youth Justice’s opinion as to whether or not the child is suitable. If the Court does order a group conference, the case is generally adjourned for a period of 6-8 weeks to permit the group conference to be prepared and conducted.

11.6.5 Mechanics

Under ss.415(2) & 415(6) of the CYFA, a Group Conference involves a meeting chaired by a convenor appointed by a service approved under s.480 which must be attended by-

• 
  the young offender and his legal practitioner; and
  
• 
  the police informant or other member of the police force.
  

Section 415(7) permits other people to attend-

• 
  members of the child’s family and other persons of significance to the child;
  
• 
  the victim(s) of the offence or their nominated representative(s) if they wish to attend;
  
• 
  any other person permitted to attend by the counsellor.
  

Section 415(8) requires the convenor to prepare a group conference report for the Court which must contain the outcome plan, if any, agreed to by the child.

Subject to ss.415(8) & 415(11) and the group conference report provisions of ss.576-580, the proceedings of a group conference are confidential [s.415(9)] and disclosure of any statement made at, or information provided to, the conference without the leave of the Court or the consent of all the parties is subject to a penalty of 10 penalty units [s.415(10)].
The conference itself has 3 stages:

1. 
   Information sharing: Information about the offence(s) is provided by the police informant. Participants then provide information about why each offence was committed, and how others have been affected by the offence(s).
   
2. 
   Family deliberation: The young person, together with family members and support persons, are left alone to talk about what can be done to repair the harm caused and discuss plans to help the young person take a more positive direction in his or her life.
   
3. 
   Agreement: An 'Outcome Plan' is then developed and prepared, explaining the agreements that have been made during the conference. Following preparation of the 'Outcome Plan', it is discussed among the group and input from all participants is encouraged.
   

11.6.6 Conference Outcomes

Outcomes from a Group Conference could include:

1. 
   Assistance and support for the young person in such areas as education, employment, skill development, recreation & counselling (drug & alcohol, individual and/or family).
   
2. 
   Dealing with the offence: This could mean that the young person apologizes and/or agrees to pay for all or part of the damage and/or make a donation or be involved in some sort of community service.
   

After a group conference the case returns to the Court for completion of the sentencing process. Although the Court is not in any way bound by the 'Outcome Plan', it will usually craft a sentence to incorporate the plan and in any event will almost always give weight to the plan. However, if the child has participated in a group conference, the Court is bound by s.362(3) of the CYFA to impose a lesser sentence than it otherwise would have imposed had the child not so participated. Further, if the child has failed to participate in a group conference s.362(4) prohibits the Court from imposing a more severe sentence than it would have imposed had sentencing not been deferred.