Criminal division – sentencing

11.12 Breach of sentencing orders made under the CYFA

11.12.1 “Generic” provisions governing commencement, hearing and transfer of breach proceedings

For a proceeding commenced on or after 01/07/2005 for breach of a sentencing order made under the CYPA or the CYFA (regardless of which court made the sentencing order, when the offence to which the proceeding relates was committed, when the sentencing order was made or what was the defendant’s age at the time of the breach), s.423 of the CYFA [previously s.196A of the CYPA] provides a nearly “generic” procedure for the commencement, hearing and transfer of such proceeding. Breach of a CYFA sentencing order for this section includes default in the payment of a fine or of any instalment under an instalment order.

ALL CYFA BREACH PROCEEDINGS ARE COMMENCED IN THE CHILDREN’S COURT

Section 423(2) provides that a proceeding for breach of a CYFA sentencing order must be commenced in the Children’s Court-

1. 
   whether the sentencing order was made by the Children’s Court or by the Supreme Court or County Court, whether on appeal or otherwise; and
   
2. 
   whether the person against whom the proceeding is commenced is aged 19 or more.
   

The method of and time for commencement of a proceeding against a person for breach of a CYFA sentencing order is as follows-

Accountable undertaking: Commenced by notice [s.366(1)]. No time limits specified.
Good behaviour bond: Commenced by notice [s.371(1)]. If person fails to appear in response to served notice, Court may issue warrant to arrest [s.371(2)(a)] or proceed in the person’s absence [s.371(2)(b)]. Proceeding must be commenced-

• 
  not later than 3 months after a finding of guilt in respect of a breaching charge [s.372(a)]; or
  
• 
  not later than 14 working days after any other alleged breach and before the expiry of the bond [s.372(b)].
  

Probation: Commenced by notice [s.384(1)] or warrant to arrest if service of a notice cannot be effected [s.384(2)(b)]. If person fails to appear in response to served notice, Court may issue warrant to arrest [s.384(2)(a)]. Proceeding must be commenced-

• 
  not later than 3 months after a finding of guilt in respect of a breaching charge [s.386(a)]; or
  
• 
  not later than 14 working days after any other alleged breach [s.386(b)].
  

Youth supervision order: Commenced by notice [s.392(1)] or warrant to arrest if service of a notice cannot be effected [s.392(2)(b)]. If person fails to appear in response to served notice, Court may issue warrant to arrest [s.392(2)(a)]. Proceeding must be commenced-

• 
  not later than 3 months after a finding of guilt in respect of a breaching charge [s.395(a)]; or
  

• 
  not later than 14 working days after any other alleged breach [s.395(b)].
  

Youth attendance order: Commenced by notice [s.408(4)] or warrant to arrest if service of a notice cannot be effected [s.408(6)(b)]. If person fails to appear in response to served notice, Court may issue warrant to arrest [s.408(6)(a)]. Proceeding must be commenced-

• 
  not later than 3 months after a finding of guilt in respect of a breaching charge [s.408(3)(a)]; or
  

• 
  not later than 14 working days after any other alleged breach [s.408(3)(b)].
  

HEARING OF A CYFA BREACH PROCEEDING WHERE CHILD IS UNDER AGE 19

Section 423(3) provides that if the proceeding for breach of a CYFA sentencing order is against a child who is under the age of 19 years when the breach proceeding is commenced, the Children’s Court must hear and determine the proceeding unless-

1. 
   the sentencing order was made by the Supreme Court or the County Court and the child does not consent to the Children’s Court hearing the breach proceeding; or
   
2. 
   the Children’s Court considers that in all the circumstances of the case it is appropriate to transfer the proceeding to the court that made the sentencing order.
   

HEARING OF A CYFA BREACH PROCEEDING WHERE CHILD IS AGED 19 OR MORE

Sections 423(4) & 423(5) provide that if the proceeding for breach of a CYFA sentencing order is against a person who is aged 19 years or more when the breach proceeding 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 made the sentencing order 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 following matters-

1. 
   the age of the person;
   
2. 
   the nature and circumstances of the alleged breach;
   
3. 
   the stage of the breach proceeding;
   
4. 
   whether the person is the subject of another proceeding in any other court;
   
5. 
   the availability of appropriate sentencing orders in the other court if the breach were proved;
   
6. 
   whether the person prefers to be dealt with in the Children’s Court or any other court;
   
7. 
   any other matter that the Court considers relevant.
   

An exception has been made in s.423(4) for proceedings for breach of an accountable undertaking. These may not be transferred to a higher court in any circumstances. Presumably the reason for this exception is that s.366(5) provides that if the court revokes the order dismissing the charge the maximum penalty it may impose is a fine of no more than 1 penalty unit.

Section 423(6) provides that a CYFA breach proceeding must not be transferred on the sole ground that the sentencing order was made by another court.

POWER TO DISCONTINUE CYFA BREACH PROCEEDING & TRANSFER TO ANOTHER COURT

Section 423(7) provides that-

• 
  if the person does not consent to the Children’s Court hearing the proceeding for breach of a CYFA sentencing order made by the Supreme Court or County Court; or
  
• 
  if the Children’s Court considers that the breach proceeding should be transferred-
  

it must discontinue the proceeding and order that it be transferred to the relevant other court and in the meantime may-

1. 
   permit the person to go at large; or
   
2. 
   grant the person bail; or
   
3. 
   remand the person in custody or in accordance with s.49 Magistrates’ Court Act.
   

Section 423(8) gives the Magistrates’ Court power to re-sentence the person as if it had just been satisfied of the person’s guilt, whether or not the Magistrates’ Court would otherwise have had jurisdiction to deal with the offence.

CONSTITUTION OF CHILDREN’S COURT HEARING A CYFA BREACH PROCEEDING

Proceedings for breach of the following sentencing orders must be heard by the judicial officer who made the original sentencing order if he or she still holds office unless the child consents to another judicial officer hearing the breach-

• 
  accountable undertaking [ss.366(3) & 366(4)];
  
• 
  good behaviour bond [ss.371(3) & 371(4)].
  

Proceedings for breach of the following sentencing orders must be heard by the judicial officer who sentenced the person if he or she still holds office unless the child consents to another judicial officer hearing the breach or it is otherwise impracticable for the original judicial officer to hear the breach-

• 
  probation [s.384(3)];
  
• 
  youth supervision order [s.392(3)]; and
  
• 
  youth attendance order [s.408(7)].
  

These provisions refer only to “magistrate” and not to “judge or magistrate”. Section 508(8) of the CYFA is relied on to extend these breach provisions to the President of the Children’s Court.

11.12.2 Powers upon proof of breach of CYFA sentencing order (other than fine default)

(1) [AUT] ACCOUNTABLE UNDERTAKING Under s.366(5), the Court may- (a) cancel the undertaking; or (b) continue or vary the undertaking but must not extend the period; or (c) revoke the order dismissing the charge and impose a fine not exceeding 1 penalty unit.

(2) [GBB] GOOD BEHAVIOUR BOND Under s.371(5), the Court may- (c) declare the bond to be forfeited and impose no penalty; or (d) proceed with the further hearing and determination of the case and deal with the child in any way in which the child could have been dealt with before the adjournment was granted.

(3) [PRO] PROBATION Under s.384(5) the Court may- (d) confirm the probation order; or (e) vary, add or substitute any special condition but must not extend the period of the order; or (f) revoke the probation order and impose any other sentencing order the Court thinks just; or (g) if the probation order has expired, impose any sentencing order the Court thinks just.

(4) [YSO] YOUTH SUPERVISION ORDER Under s.393 the Court may- (d) vary the YSO but not extend its term; or (e) confirm the YSO and direct the person to comply with it; or (f) revoke the YSO and impose any sentencing order the Court thinks just; or (g) if the YSO has expired, impose any sentencing order the Court thinks just.

(5) [YAO] YOUTH ATTENDANCE ORDER Under s.408(2) the Court may- (a) vary the YAO but not extend its term; or (b) confirm the YAO and direct the person to comply with it; or (c) revoke the YAO and impose any sentencing order than the Court thinks just but not make an order for the person to be kept in custody for a period longer than that of the breached YAO; or (d) if the YAO has expired, impose any sentencing order that the Court thinks just but not make an order for the person to be kept in custody for a period longer than that of the breached YAO.

It is clear that it is the intention of s.423 that there be no age restriction on the jurisdiction of the Children’s Court to deal with breaches of any sentencing order made under the CYFA, irrespective of how old the person was at the time the alleged breach was committed or the breach proceeding was commenced.

11.12.3 Fine defaults

A significant proportion of sentencing orders are fines: 42% in 2003/04. This reflects the very high proportion of ex parte hearings in relation to offences like travelling on public transport without a valid ticket or riding a bicycle without wearing a properly fitted helmet.
Because children and young people frequently have no source of income other than their parents, a very significant proportion of fines are not paid. There is no power to enforce the payment of unpaid fines against a parent. Nor, unlike the situation with an adult, is there any power to order a child to perform unpaid community service in default of payment of a fine (cf. s.62(10)(a) of the Sentencing Act 1991 [as amended]). By amending Act No.69/1992, s.155(1)(d) - the option for a YSO or YAO - was to be replaced with a 'community service order' made pursuant to a new s.155B of the CYPA. However, those provisions never came into operation. Section 378(1)(f) of the CYFA now makes probation or YSO for a period not exceeding 3 months an option in fine default proceedings.
If for a period of more than one month a person defaults in payment of a fine or any instalment under an instalment order, the person may be served, by post or otherwise, with a notice to appear before the Court in respect of the default: s.378(2) of the CYFA. If the person fails to appear or service of the notice cannot be effected, the Court may order that a warrant to arrest the person be issued.
Section 378(1) of the CYFA gives the Court power in relation to a “person” who has been served with a notice under s.378(2) or has been arrested on a warrant issued under s.378(3). This is a recent amendment. The fine default provisions previously referred to a “child” defaulting in the payment of a fine. The amendment is clearly intended to enable persons who were fined as children and who have not paid the fine to be subject to the fine default provisions whether or not they are no longer children.
A court’s powers under s.378(1) of the CYFA are-

(a)	WAIVE PAYMENT	to determine that payment of the amount of the fine that remains unpaid not be enforced;
(b)	ADJOURN	to adjourn the hearing or further hearing of the matter for up to 6 months on any terms the Court thinks fit;
(c)	VARY	to order that the fine be varied in a specified way;
(d)	VARY INSTALMENT ORDER	if the default is in payment under an instalment order [s.375], to order that the instalment order be varied;
(e)	WARRANT TO SEIZE PROPERTY	to order that the fine then unpaid be levied by a warrant to seize property;
(f)	PROBATION or YSO	to release the child on probation or a YSO for a period not exceeding 3 months but in no case extending beyond the child’s 21^st birthday;

Since 01/07/2005 all previous powers to order that a child in default of payment of fine be detained in YRC or YJC on weekend detention have been repealed.

It has been uncommon at most courts for a child to be placed on a YSO or YAO in default of payment of a fine. At Melbourne Children's Court, most orders made in default of payment of a fine were warrants to seize property under s.378(1)(e) of the CYFA [previously s.155(1)(c) of the CYPA]. Most warrants so issued are returned to Court marked 'nulla bona' (no goods to seize). This process falls well short of the sentencing ideal, set out in s.362(1)(f) of the CYFA, of requiring a child to be accountable for his or her offending behaviour.