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YOUTH JUSTICE AND OTHER LEGISLATION AMENDMENT ACT (NO. 2) 2016 - SECT 23 Insertion of new pt 7, div 2

YOUTH JUSTICE AND OTHER LEGISLATION AMENDMENT ACT (NO. 2) 2016 - SECT 23

Insertion of new pt 7, div 2

23 Insertion of new pt 7, div 2

Part 7—

insert—

Division 2 - Restorative justice process referrals before sentencing

161 Definitions for division In this division—


"child" , in relation to a referral, means the child to which the referral relates.


"court diversion referral" see section 163(1)(d)(i).


"offence" , in relation to a referral, means the offence to which the referral relates.
162 When court must consider making court diversion referral or presentence referral
(1) If a child enters a plea of guilty for an offence in a proceeding before a court, the court must consider referring the offence to the chief executive for a restorative justice process instead of sentencing the child.
(2) If a finding of guilt for an offence is made against a child before a court, the court must consider referring the offence to the chief executive for a restorative justice process to help the court make an appropriate sentence order.
163 Power of court to make restorative justice process referral
(1) The court may, by notice given to the chief executive, refer an offence to the chief executive for a restorative justice process if—
(a) the court considers the child is informed of, and understands, the process; and
(b) the child indicates willingness to comply with the referral; and
(c) the court is satisfied that the child is a suitable person to participate in a restorative justice process; and
(d) having regard to the deciding factors for referring the offence, the court considers the referral would—
(i) allow the offence to be appropriately dealt with without making a sentence order (a
"court diversion referral" ); or
(ii) help the court make an appropriate community based order or detention order (a
"presentence referral" ); and
(e) having regard to a submission by the chief executive about the appropriateness of the offence for a referral, the court considers the referral is appropriate in the circumstances.
(2) In this section—


"deciding factors" , for referring an offence, means—
(a) the nature of the offence; and
(b) the harm suffered by anyone because of the offence; and
(c) whether the interests of the community and the child would be served by having the offence dealt with under a restorative justice process.
164 Court diversion referrals
(1) This section applies if the court makes a court diversion referral.
(2) The making of the referral brings the court proceeding for the offence to an end and the child is not liable to be further prosecuted for the offence unless—
(a) the chief executive returns the referral under section 32(1); or
(b) the chief executive advises the court’s proper officer that the child failed to comply with a restorative justice agreement made as a consequence of the referral.
(3) If subsection (2)(a) applies—
(a) the court’s proper officer must bring the charge for the offence back on before the court for sentencing; and
(b) in sentencing the child, the court must not have regard to the referral being returned.
(4) If subsection (2)(b) applies, the court’s proper officer must bring the charge for the offence back on before the court for sentencing and the court must either—
(a) take no further action; or
(b) allow the child a further opportunity to comply with the agreement; or
(c) sentence the child for the offence.
(5) If the charge for the offence is brought back on before the court for sentencing, the court’s proper officer must give the child and the chief executive notice that the proceeding for the offence is to be heard by the court on a stated day.
(6) The notice must include a warning that, if the child fails to appear before the court in compliance with the notice, the court may issue a warrant for the child’s arrest.
(7) The notice restarts the proceeding from when it ended and the child is liable to be sentenced for the offence.
(8) If the child fails to appear before the court in compliance with the notice, the court may issue a warrant for the child’s arrest.
(9) If subsection (4)(a) applies, the court proceeding for the offence is brought to an end and the child is not liable to be further prosecuted for the offence.
165 Presentence referrals
(1) This section applies if the court makes a presentence referral.
(2) On making the referral, the court may—
(a) give the directions it considers appropriate to the child or the chief executive; and
(b) adjourn the proceeding for the offence.
(3) If the chief executive returns the referral under section 32(1), the court must proceed with sentencing the child for the offence.
(4) If a restorative justice agreement is made as a consequence of the referral, the chief executive must—
(a) give the court a copy of the agreement; and
(b) inform the court of any obligations of the child under the agreement that have already been performed.
(5) If a restorative justice agreement is given to the court under subsection (4), the court must give a copy of the agreement as soon as practicable to—
(a) the prosecution; and
(b) if the child is represented by a lawyer—the lawyer.
(6) In sentencing the child for the offence, the court must have regard to—
(a) the child’s participation in the relevant restorative justice process; and
(b) the child’s obligations under the restorative justice agreement; and
(c) anything done by the child under the restorative justice agreement; and
(d) any information provided by the chief executive about sentencing the child.