The Court: Frankston Children’s Court
The Lawyer: Hayden Brodie
The Charges:
Frankston Children’s Court Penalties:
- Affray has always been considered a serious offence. Prior to 2010 it could only be dealt with in the County or Supreme Courts.
Prior to 13 September 2017, the offence of Affray was contained within common law. Section 195H of the Crimes Act 1958 (Vic) sets out the maximum penalty, being five (5) years imprisonment, or seven (7) years if the offender is using a face covering to conceal their identity or to protect them from a crowd altering substance.
The offence of Affray requires that there is violence, or a threat of violence, to the degree that a person of reasonable firmness would be terrified in the circumstances.
- The maximum penalty for Recklessly Cause Injury is imprisonment of five (5) years.
- The maximum penalty for Unlawful Assault is a fine of 15 penalty units (approximately $2,400) or imprisonment of three (3) months.
The Allegations:
The client was out with friends when they were encountered by another group of youths. A fight ensued, where one member of the other group was injured and another was assaulted. The fight occurred in the front yard of a house. At the time of the offence, our client was intoxicated and had used cannabis.
The parties separated before the police arrived, and our client was subsequently arrested and interviewed at a later date. The client was interviewed and made full and frank admissions to the police regarding the offending.
At Court:
The matter was summary case conferenced with the prosecution, and it was determined that only the charge of recklessly causing injury and common assault would proceed.
Due to the client’s lengthy prior criminal history, he was not eligible for the Ropes Program or a Children’s Court Diversion Program.
The matter therefore proceeded as a plea of guilty at court, together with a co-accused who pleaded guilty to identical charges. As the matter was heard in the Children’s Court, several options were available to the Magistrate that do not exist for accused persons who are adults and tried in adult courts.
As such, our solicitor made submissions that the matter should be adjourned for a group conference to be conducted and a pre-sentence report to be prepared.
What is a group conference in the Children’s Court?
Section 415 of the Children, Youth and Families Act 2005 (Vic) allows the Children’s Court to defer sentence to allow a young person to participate in a group conference if the Magistrate is considering placing the young person on a supervisory order, such as probation. It is important to note that a group conference cannot take place if the young person does not consent to participating in it.
A group conference aims to show a young person how their offending not only affects the victims but also the wider community. It also seeks to have the young person attempt to repair the harm that they have caused due to their offending.
Several people often attend a group conference:
- The young person;
- Their family and/or support people (such as Youth Justice Worker);
- Their legal representative;
- The victim and/or their representatives (such as someone from the Victim Resource Centre);
- The victim’s family and/or support people;
- Police informant or their representative (such as a Youth Resource Officer); and
- The convenor of the group conference.
All participants discuss the offence and its impact. It allows the young person to see the different aspects of their offending and enables them to reflect on their behaviour and consider what they would have done differently.
An outcome plan is formulated by the young person, who highlights the actions they can take to help repair the harm caused by their offending, as well as ways to prevent the behaviour from being repeated. For example, letters of apology to primary and secondary victims for the harm that has been caused, whether it be physical, emotional or financial.
A report is prepared by the convenor after the group conference is completed, and is presented to the court.
Frankston Children’s Court Pre-sentence Report:
Section 571 of the Children, Youth and Families Act 2005 (Vic) enables the court to order a pre-sentence report by Youth Justice concerning any matter before it.
The young person is required to engage with Youth Justice, which can assist in linking them to various services to support their rehabilitation and address offending behaviours. Youth Justice will then prepare a report for the court and make a recommendation regarding an appropriate sentence.
The Outcome:
The Magistrate was hesitant to order the group conference, as he was concerned that the victims would be forced to participate. Our solicitor made submissions that although the victims would be invited to participate, a victim’s advocate would attend in their stead if they declined. The client would still benefit from learning about the ongoing effects of his offending. The Magistrate agreed that it would be beneficial for all involved if our client received this insight, as it would likely have an impact on his future decision-making, should he ever be involved in a similar situation.
The matter returned to court, and favourable reports from Youth Justice and the Group Conference were tendered. The client had engaged well with Youth Justice, who helped link him with mental health services and treatment for drug and alcohol use. He had also obtained full-time employment during the deferral period.
The Magistrate decided that, although he was initially considering a more serious penalty, a period of probation would be an appropriate outcome in the circumstances. Accordingly, the client was placed on probation for 12 months, without conviction.
The client was very grateful for the opportunity to continue working with Youth Justice and address his underlying issues, as well as for being afforded the chance to avoid a more serious outcome.
