Y v F - [2002] VSC 166

Not Restricted
IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

No. 8734 of 2001

In the Matter of an Appeal under s. 200 of the Children and Young Persons Act 1989

BETWEEN:

“Y” (a child by his litigation guardian, “Y”)	Appellant
v
“F”	Respondent

---

JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 7 May 2002
DATE OF JUDGMENT:	10 May 2002
CASE MAY BE CITED AS:	Y v F
MEDIUM NEUTRAL CITATION:	[2002] VSC 166

---

Appeal from decision of Criminal Division of Children’s Court: appeal on a question of law from sentencing order: final order: error made as to construction of statute relevant to exercise of sentence discretion: matter taken into account on sentence which ought not to have been taken into account and which was irrelevant; errors of law in exercise of sentencing discretion: appeal from sentencing order not restricted to appeal under s. 197 of Children and Young Persons Act 1989: sentencing order set aside: matter remitted to Children’s Court for rehearing by way of re-sentencing.

Children and Young Persons Act 1989 ss. 137(1)(a)-(d), 138, 140-148, 197, 200.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr D. Neal	Victoria Legal Aid
For the Defendant	Mr G. Silbert	Office of Public Prosecutions

HIS HONOUR:

The proceeding before the Court is an appeal from an order of the Criminal Division of the Children’s Court of Victoria at Frankston on 15 November 2001 pursuant to which the Court, without convicting the appellant adjourned the proceeding then before the Court until 10.00 am, 14 May 2002 at the Frankston Children’s Court and released the appellant upon him entering into a good behaviour bond in the amount of $50.00 and to be of good behaviour during the period of that bond. The appeal is brought pursuant to s. 200(1) of the Children and Young Persons Act 1989 pursuant to which it is provided:

“(1)A party to a proceeding (other than a committal proceeding) before the Criminal Division may appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.”

On 15 November 2001 the appellant, who was born on 15 June 1988 and who then was aged 13 years, was charged before the Children’s Court at Frankston that on 9 October 2001 he stole a padlock and bike-lock being the property of Safeways Pty Ltd and valued at $16.00. The appellant was legally represented before the Court.

The offence with which the appellant was charged is an indictable offence – s. 74 Crimes Act 1958. Through his legal representative the appellant consented to the charge being heard and determined summarily and again through his legal representative he entered a plea of guilty to the offence charged.

The prosecuting officer gave to the Court a summary of the facts and circumstances constituting the criminal offence which was accepted by the appellant’s legal representative. Such facts and circumstances were as follows: on 9 October 2001 at about 4.00 pm…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Y v F

Details

AGLC: Y v F [2002] VSC 166
Case: [2002] VSC 166
Decision Date: 10 May 2002

CaseChat Overview and Summary

In the matter of Y v F, the appeal was brought from a decision of the Criminal Division of the Children’s Court. The case concerned a sentencing order imposed on a young offender, Y, for an offence committed under the Children and Young Persons Act 1989. The primary issue for the court was whether the Children’s Court had made errors in the construction of the statute and in the exercise of its sentencing discretion, particularly in considering factors that were irrelevant to the sentencing decision.

The court identified several legal issues that needed resolution. Firstly, it had to determine whether the Children’s Court had erred in its interpretation of the statutory provisions relevant to the exercise of sentencing discretion. Secondly, the court had to examine whether any irrelevant factors were improperly taken into account during the sentencing process, which could have influenced the outcome. The appeal hinged on whether these errors of law warranted the setting aside of the sentencing order and the remitting of the matter to the Children’s Court for re-sentencing.

The court concluded that the Children’s Court had indeed made errors in the construction of the statute and in the exercise of its sentencing discretion. Specifically, it was found that the court had taken into account factors that were irrelevant and not authorised by the statute, thereby affecting the sentencing decision. The appeal was allowed on the basis that these errors of law warranted the setting aside of the sentencing order. Consequently, the matter was remitted to the Children’s Court for rehearing by way of re-sentencing to ensure that the statutory requirements and legal principles were correctly applied.

In light of the findings, the appeal was allowed, and the sentencing order was set aside. The case was remitted to the Children’s Court for re-sentencing, ensuring that the statutory requirements and legal principles were correctly applied in accordance with the law.

Orders