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CRIMINAL PROCEDURE AMENDMENT (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) ACT 2009 (NO. 68 OF 2009) - SECT 69 Substitution of Part 5.4

CRIMINAL PROCEDURE AMENDMENT (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) ACT 2009 (NO. 68 OF 2009) - SECT 69

Substitution of Part 5.4

For Part 5.4 of Chapter 5 of the Children, Youth and Families Act 2005 substitute

" PART 5.4—APPEALS

Division 1—Appeal by offender to the County Court or Trial Division of the Supreme Court

        424     Right of appeal

A person convicted of an offence by the Children's Court in a summary proceeding in the Criminal Division may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court against—

        (a)     the conviction and sentence imposed by the Children's Court; or

        (b)     sentence alone.

Note

See the definitions of conviction and sentence in section 3.

        425     How appeal is commenced

    (1)     An appeal under section 424 is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the sentence of the Children's Court is imposed.

    (2)     A copy of the notice of appeal must be served on the respondent in accordance with section 392 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice is filed.

    (3)         A notice of appeal must—

        (a)     state whether the appeal is against conviction and sentence, or sentence alone; and

        (b)     be in the form prescribed by the rules of the appellate court.

    (4)     A notice of appeal must include an undertaking signed by the appellant in the manner prescribed by the rules of the appellate court—

s. 69

        (a)     to appear at the appellate court to proceed with the appeal at a place and on a day fixed or to be fixed by the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) and to appear at the appellate court for the duration of the appeal; and

        (b)     to give written notice without delay to the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) of any change of address of the appellant from that appearing in the notice of appeal.

    (5)     A notice of appeal filed under this section must be transmitted to the appellate court.

        426     Determination of appeal

    (1)     An appeal under section 424 must be conducted as a rehearing and the appellant is not bound by the plea entered in the Children's Court.

    (2)     On the hearing of an appeal under section 424, the appellate court—

        (a)     must set aside the sentence of the Children's Court; and

        (b)     subject to this section, may impose any sentence which the appellate court considers appropriate and which the Children's Court imposed or could have imposed; and

        (c)     may exercise any power which the Children's Court exercised or could have exercised.

    (3)     On the hearing of an appeal under 424 (other than an appeal referred to in subsection (6) of this section), the appellate court must warn the appellant, as early as possible during the hearing, that the appellant faces the possibility that a more severe sentence may be imposed than that imposed by the Children's Court.

    (4)     The appellate court may backdate a sentence imposed under subsection (2) to a date not earlier than the date of the sentence of the Children's Court that was set aside on the appeal.

    (5)     A sentence imposed under subsection (2) is for all purposes to be regarded as a sentence of the appellate court.

    (6)     If an appellant appeals against an order made under section 363, 365 or 367, the appellate court may—

        (a)         dismiss the charge against the appellant; or

        (b)     make an order in the same terms as the order of the Children's Court—

but must not impose any other sentence.

Note

Orders under sections 363, 365 and 367 are orders for non-accountable undertakings, accountable undertakings and good behaviour bonds respectively.

    (7)     On the hearing of an appeal referred to in subsection (8), if the appellate court finds the appellant guilty of 2 or more of the offences in respect of which the appellant was sentenced, the appellate court may order—

        (a)     that the appellant be detained in a youth residential centre or a youth justice centre, as the case may be, for a period not exceeding the aggregate period specified in the original sentence; or

        (b)     that the appellant be detained in a youth residential centre or a youth justice centre, as the case may be, for a separate period of detention in respect of each offence but so that the separate periods do not in the aggregate exceed the aggregate period specified in the original sentence.

    (8)     Subsection (7) applies to an appeal under section 424 against—

        (a)     a sentence which orders the appellant to be detained in a youth residential centre or a youth justice centre in respect of 2 or more offences for a specified aggregate period; or

        (b)     a conviction in respect of which a sentence referred to in paragraph (a)     was imposed.

    (9)     On an appeal under this section, the appellate court may, despite anything to the contrary in this Act, make a probation order, youth supervision order or youth attendance order in respect of a person even though at the time of making that order the person is of or above the age of 19 years but under 21 years.

Division 2—Appeal by DPP against sentence

        427     DPP's right of appeal against sentence

    (1)     The DPP may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court against a sentence imposed by the Children's Court in a summary proceeding in the Criminal Division if satisfied that an appeal should be brought in the public interest.

    (2)     The DPP must not bring a further appeal against a sentence imposed by the appellate court.

        428     How appeal is commenced

    (1)     An appeal under section 427 is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the sentence of the Children's Court is imposed.

    (2)     A copy of the notice of appeal must be served on the respondent in accordance with section 593(1) within 7 days after the day on which the notice is filed.

    (3)     A notice of appeal must—

        (a)     state the general grounds of appeal; and

        (b)     be in the form prescribed by the rules of the appellate court.

    (4)     The DPP must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the criminal proceeding to which the appeal relates, if that legal practitioner can reasonably be identified.

    (5)     A notice of appeal filed under this section must be transmitted to the appellate court.

        429     Determination of DPP appeal

    (1)     An appeal under section 427 must be conducted as a rehearing and the respondent is not bound by the plea entered in the Children's Court.

    (2)     On the hearing of an appeal under section 427, the appellate court—

        (a)     must set aside the sentence of the Children's Court; and

        (b)     subject to this section, may impose any sentence which the appellate court considers appropriate and which the Children's Court imposed or could have imposed; and

        (c)     may exercise any power which the Children's Court exercised or could have exercised.

    (3)     If the DPP appeals against an order made under section 363, 365 or 367, the appellate court may—

        (a)     dismiss the charge against the appellant; or

        (b)     make an order in the same terms as the order of the Children's Court—

but must not impose any other sentence.

Note

Orders under sections 363, 365 and 367 are orders for non-accountable undertakings, accountable undertakings and good behaviour bonds respectively.

    (4)     On the hearing of an appeal referred to in subsection (5), if the appellate court finds the respondent guilty of 2 or more of the offences in respect of which the respondent was sentenced, the appellate court may order—

        (a)     that the respondent be detained in a youth residential centre or a youth justice centre, as the case may be, for a period not exceeding the aggregate period specified in the original sentence; or

        (b)     that the respondent be detained in a youth residential centre or a youth justice centre, as the case may be, for a separate period of detention in respect of each offence but so that the separate periods do not in the aggregate exceed the aggregate period specified in the original sentence.

    (5)     Subsection (4) applies to an appeal under section 427 against a sentence which orders the respondent to be detained in a youth residential centre or a youth justice centre in respect of 2 or more offences for a specified aggregate period.

    (6)     In imposing a sentence under subsection (2), (3) or (4), the appellate court must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.

    (7)     The appellate court may backdate a sentence imposed under subsection (2), (3) or (4) to a date not earlier than the date of the sentence of the Children's Court that was set aside on the appeal.

    (8)     A sentence imposed under subsection (2), (3) or (4) is for all purposes to be regarded as a sentence of the appellate court.

    (9)     Despite anything to the contrary in this Act, on an appeal under section 427, the appellate court may make a probation order, youth supervision order or youth attendance order in respect of a person even though at the time of making that order the person is of or over the age of 19 years but under 21 years.

Division 3—Procedure on appeals from Children's Court

        430     Late notice of appeal deemed to be application for leave to appeal

    (1)     A notice of appeal filed after the end of the period referred to in section 425(1) or 428 is deemed to be an application for leave to appeal on the grounds stated in the notice.

    (2)     The appellate court may grant leave to appeal under subsection (1) and the appellant may proceed with the appeal if—

        (a)     the court considers that the failure to file a notice of appeal within the period referred to in section 425(1) or 428 was due to exceptional circumstances; and

        (b)     the court is satisfied that the respondent's case would not be materially prejudiced because of the delay.

        430A     Stay of order

    (1)     If an appellant appeals against sentence and is not in custody because of that sentence, the appeal operates as a stay of the sentence (but not a conviction in respect of the sentence) when the appellant files the notice of appeal and signs the undertaking referred to in section 425(4).

    (2)     If an appellant appeals against sentence and is in custody because of that sentence, the appeal operates as a stay of the sentence (but not a conviction in respect of the sentence) when—

        (a)     the appellant files the notice of appeal and signs the undertaking referred to in section 425(4); and

        (b)     the appellant enters bail, if bail is granted under section 430B.

    (3)     This section is subject to section 29 of the Road Safety Act 1986 .

        430B     Bail pending appeal

    (1)     If an appellant is in custody because of the sentence appealed against and wishes to be released pending the appeal, the appellant—

        (a)     may apply to the Children's Court to be released on bail; and

        (b)     if he or she makes an application under paragraph (a), must give reasonable notice of the application to the respondent to the appeal.

    (2)     If an application is made under subsection (1), Division 1 of Part 5.2 applies as if the appellant were a child taken into custody.

        430C     Abandonment of appeal

    (1)     Subject to subsections (3) and (4), an appeal to the County Court or the Trial Division of the Supreme Court may be abandoned by filing a notice of abandonment of appeal with the registrar of the County Court or the prothonotary of the Supreme Court, as the case requires.

    (2)     A notice of abandonment of appeal must be in the form prescribed by the rules of the appellate court.

    (3)     If an appellant appeals against both conviction and sentence but does not pursue the appeal against conviction, the appellant must give written notice to the appellate court and the respondent that the appeal against conviction is abandoned.

    (4)     An appellant who has been sentenced to a term of detention in a youth residential centre or a youth justice centre but is not in custody may abandon the appeal by—

        (a)     surrendering to the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires); and

        (b)     immediately filing a notice of abandonment of appeal in accordance with subsections (1) and (2).

    (5)     If a person surrenders to the registrar of the County Court or the prothonotary of the Supreme Court in accordance with subsection (4), the registrar or the prothonotary (as the case requires) may issue a warrant to detain the person in a youth residential centre or a youth justice centre (as the case requires).

    (6)     If an appellant abandons an appeal, the appellate court must strike out the appeal.

    (7)     If an appeal is struck out under subsection (6)—

        (a)     the sentence of the Children's Court is reinstated and may be enforced as if an appeal had not been made but, for the purposes of the enforcement of any penalty, time is deemed not to have run during the period of any stay; and

        (b)     the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) must give to the respondent or to the respondent's legal practitioner a copy of the order striking out the appeal; and

        (c)     the making of an order striking out an appeal discharges the undertaking of the appellant to proceed with the appeal.

        430D     Appellant's failure to appear

    (1)     If an appellant (other than the DPP) fails to appear at the time listed for the hearing of the appeal, the appellate court may—

        (a)     strike out the appeal; or

        (b)     adjourn the proceeding on any terms that it considers appropriate.

    (2)     If an appeal is struck out under subsection (1)(a)—

        (a)     the sentence of the Children's Court is reinstated and may be enforced as if an appeal had not been commenced but, for the purposes of the enforcement of any penalty, time is deemed not to have run during the period of any stay; and

        (b)     the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) must give to the respondent or to the respondent's legal practitioner a copy of the order striking out the appeal; and

        (c)     the making of an order striking out an appeal discharges the undertaking of the appellant to proceed with the appeal.

s. 69

    (3)     The appellate court, at any time, may set aside an order striking out an appeal because of the failure of the appellant to appear, if the appellant satisfies the court that the failure to appear was not due to fault or neglect on the part of the appellant.

    (4)     An application under subsection (3) to set aside an order may be made at any time on notice in writing to the respondent served a reasonable time before the making of the application.

    (5)     Notice under subsection (4) must be served in the same way as a notice of appeal.

    (6)     If the appellate court grants an application under subsection (3), the court—

        (a)     must order the reinstatement of the appeal subject to the payment of any costs that the court considers appropriate; and

        (b)     may require the appellant to give a further undertaking to proceed with the appeal.

    (7)     On the reinstatement of an appeal under subsection (6), the appeal operates as a stay of the sentence (but not a conviction in respect of the sentence) when—

        (a)     if required, the appellant signs the undertaking referred to in section 425(4); and

        (b)     if the appellant is in custody because of the sentence appealed against and bail is granted under section 430B, the appellant enters bail.

    (8)     Subsection (7) is subject to section 29 of the Road Safety Act 1986 .

        430E     Respondent's failure to appear on appeal by DPP

    (1)     If a respondent to an appeal under section 427 by the DPP fails to appear at the time listed for the hearing of the appeal, the appellate court—

        (a)     may adjourn the proceeding on any terms that it considers appropriate; or

        (b)     if satisfied that notice of the appeal has been given in accordance with section 428, may hear and determine the appeal in the absence of the respondent.

Note

The appellate court cannot impose a sentence that requires the consent of the respondent, for example a youth supervision order, in the absence of the respondent.

    (2)     If the appellate court adjourns the proceeding and is satisfied that notice of the appeal has been given in accordance with section 428, the court may issue a warrant to arrest the respondent and to bring the respondent before the judge who issued the warrant or any other judge of the court.

        430F     One notice of appeal for 2 or more sentences

If 2 or more sentences are imposed in respect of charges that have been heard together, the appellant may give one notice of appeal for all or any of those sentences.

        430G     Appeal to County Court or Trial Division of Supreme Court authorised by other Acts

If a person is authorised by or under any other Act to appeal from an order of the Children's Court to the County Court or the Trial Division of the Supreme Court, subject to that Act, the provisions of this Act with respect to appeals to those courts apply.

Division 4—Reports

        430H     Application of Division

This Division applies to an appeal under Division 1 or 2.

Subdivision 1—Pre-sentence reports

        430I     Court may order pre-sentence report

    (1)     If the appellate court finds a person guilty of an offence it may, before passing sentence, order the Secretary or the Secretary to the Department of Justice to submit a pre-sentence report in respect of the person and adjourn the proceeding to enable the report to be prepared.

    (2)     The appellate court must order a pre-sentence report if it is considering making a youth residential centre order or a youth justice centre order.

    (3)     If it appears to the appellate court that a person found guilty of an offence is intellectually disabled, the appellate court must, before passing sentence, order a pre-sentence report in respect of the person and adjourn the proceeding to enable the report to be prepared.

    (4)     If the Secretary has issued a statement in respect of the person that the person has an intellectual disability within the meaning of the Disability Act 2006 , a pre-sentence report prepared in accordance with an order under subsection (3) must—

        (a)     include a copy of the statement; and

        (b)     specify disability services which are—

              (i)     available under that Act and appropriate for the person; and

              (ii)     designed to reduce the likelihood of the person committing further offences.

    (5)     Sections 549 and 552 apply to pre-sentence reports under this Subdivision as if—

        (a)     a reference to a report to which Part 7.8 applies were a reference to a pre-sentence report under this Subdivision; and

        (b)     a reference to the child were a reference to the person; and

s. 69

        (c)     a reference to the consent of the child's parent were omitted if the person is no longer a child at the time of the appeal.

Note

Section 549 requires a warning to be given to persons being interviewed in the course of the preparation of the report. Section 552 concerns the confidentiality of reports.

    (6)     Sections 573 and 575 apply to pre-sentence reports under this Division as if—

        (a)     a reference to the Court were a reference to the appellate court; and

        (b)     a reference to the child were a reference to the person; and

        (c)     the reference in section 575(1) to section 574 were a reference to section 430K.

Note

Section 573 specifies the contents of a pre-sentence report. Section 575 concerns access to a pre-sentence report.

        430J     Notification of requirement to submit pre-sentence report

If the appellate court orders the Secretary or the Secretary to the Department of Justice to submit a pre-sentence report under section 430I, the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) must, within one working day after the making of the order—

        (a)     orally notify him or her of the making of the order; and

        (b)     forward a copy of the order to him or her.

        430K     Pre-sentence report to be filed with court

A pre-sentence report ordered under section 430I must be filed with the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) at least 4 working days before the return date and in any event not later than 21 days after the report was ordered by the appellate court.

        430L     Attendance at appellate court of author of pre-sentence report

    (1)     The author of a pre-sentence report under this Subdivision may be required to attend to give evidence at the hearing of the appeal to which the report is relevant by a notice given in accordance with subsection (2) by—

        (a)     the person in respect of whom the report has been prepared; or

        (b)     if the person is a child, a parent of that child; or

        (c)     the Secretary; or

        (d)     the appellate court.

    (2)     A notice under subsection (1) must be—

        (a)     in writing; and

        (b)     filed with the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) as soon as possible and, if practicable, not later than 2 working days before the hearing.

s. 69

    (3)     On the filing of a notice under subsection (1), the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) must immediately notify the author of the report that his or her attendance is required on the return date.

    (4)     A person is guilty of contempt of court if, being the author of a report who has been required to attend the appellate court under subsection (1), he or she fails, without sufficient excuse, to attend as required.

    (5)     The author of a report who has been required under subsection (1) by the person or, if the person is a child, a parent of the child or the Secretary to attend at the hearing of an appeal must, if required by the person or the parent or the Secretary (as the case requires), be called as a witness and may be cross-examined on the contents of the report.

        430M     Disputed pre-sentence report

    (1)     If any matter in a pre-sentence report under this Subdivision is disputed by the person who is the subject of the report, the appellate court must not take the disputed matter into consideration when determining the appeal unless satisfied that the matter is true beyond reasonable doubt.

    (2)     If—

        (a)     a pre-sentence report under this Subdivision, or any part of a report, is disputed by the person who is the subject of the report; and

        (b)     the author of the report does not attend the hearing of the appeal despite having been required to attend under section 430L(1)—

the appellate court must not take the report or the part in dispute into consideration when determining the proceeding unless the person consents to the report or the part in dispute being admitted into evidence.

Subdivision 2—Group conference reports

        430N     Group conference report

    (1)     If the appellate court finds a person guilty of an offence and defers sentencing the person for the purposes of a group conference, it must order a group conference report.

    (2)     A group conference report must be prepared by the convenor of the group conference.

    (3)     Sections 549 and 552 apply to group conference reports under this Subdivision as if—

        (a)     a reference to a report to which Part 7.8 applies were a reference to a group conference report under this Subdivision; and

        (b)     a reference to the child were a reference to the person; and

        (c)     a reference to the consent of the child's parent were omitted if the person is no longer a child at the time of the appeal.

Note

Section 549 requires a warning to be given to persons being interviewed in the course of the preparation of the report. Section 552 concerns the confidentiality of reports.

    (4)     Sections 578 and 580 apply to group conference reports under this Subdivision as if—

        (a)     a reference to the child were a reference to the person; and

        (b)     a reference to the Court were a reference to the appellate court; and

        (c)     a reference to section 579 were a reference to section 430O.

Note

Section 578 specifies the content of a group conference report. Section 580 concerns access to a group conference report.

        430O     Group conference report to be filed with court

A group conference report must be filed with the registrar of the County Court or the prothonotary of the Supreme Court (as the case requires) at least 4 working days before the return date and in any event not later than the date fixed by the appellate court.

Division 5—Appeal to Supreme Court on a question of law

        430P     Appeal to Supreme Court on a question of law

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

    (2)     If an informant who is a member of the police force wishes to appeal under subsection (1), the appeal may be brought only by the DPP on behalf of the informant.

    (3)     An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of the Supreme Court within 28 days after the day on which the order complained of was made.

    (4)     A copy of the notice of appeal must be served on the respondent in accordance with subsection (5) within 7 days after the day on which the notice of appeal was filed.

    (5)     A copy of the notice of appeal must be served—

        (a)     personally on a respondent who was the accused; or

        (b)     on a respondent who was the informant in accordance with section 392 of the Criminal Procedure Act 2009 .

    (6)     An appeal under subsection (1) does not operate as a stay of any order made by the Children's Court unless the Supreme Court otherwise orders.

    (7)     An appeal commenced after the end of the period referred to in subsection (3) is deemed to be an application for leave to appeal under subsection (1).

    (8)     The Supreme Court may grant leave under subsection (7) and the appellant may proceed with the appeal if the Supreme Court—

        (a)     is of the opinion that the failure to commence the appeal within the period referred to in subsection (3) was due to exceptional circumstances; and

        (b)     is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.

    (9)     After hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the case for rehearing to the Children's Court with or without any direction in law.

    (10)     An order made by the Supreme Court on an appeal under subsection (1), other than an order remitting the case for rehearing to the Children's Court, may be enforced as an order of the Supreme Court.

    (11)     The Supreme Court may provide for a stay of the order or for admitting any person to bail as it considers appropriate.

        430Q     Appeal on question of law precludes other appeals

If a person appeals under this Division to the Supreme Court on a question of law, that person abandons finally and conclusively any right under this or any other Act to appeal to the County Court or the Trial Division of the Supreme Court in relation to that proceeding.

Division 6—Appeal to Court of Appeal and referral of point of law to Court of Appeal

        430R     Right of appeal against sentence of detention imposed on appeal from Children's Court

    (1)     In this section—

"detention" means detention in a youth justice centre or youth residential centre.

    (2)     A person sentenced to a term of detention by an appellate court under section 426 or 429 may appeal to the Court of Appeal against the sentence if—

        (a)     in the proceeding that is the subject of the appeal, the Children's Court had not ordered that the person be detained; and

        (b)     the Court of Appeal gives the person leave to appeal.

        430S     How appeal is commenced

    (1)     An application for leave to appeal under section 430R is commenced by filing a notice of application for leave to appeal in accordance with the rules of court within 28 days after the day on which the person is sentenced by the appellate court or any extension of that period granted under section 313 of the Criminal Procedure Act 2009 .

    (2)     The Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of application for leave to appeal within 7 days after the day on which the notice of application is filed.

        430T     Determination of appeal

    (1)     On an appeal under section 430R, the Court of Appeal must allow the appeal if the appellant satisfies the court that—

        (a)     there is an error in the sentence imposed; and

        (b)     a different sentence should be imposed.

    (2)     In any other case, the Court of Appeal must dismiss an appeal under section 430R.

    (3)     If the Court of Appeal is considering imposing a more severe sentence than the sentence imposed by the appellate court, the Court of Appeal must warn the appellant, as early as possible during the hearing of the appeal, that the appellant faces the possibility that a more severe sentence may be imposed than that imposed by the appellate court.

        430U     Orders etc. on successful appeal

    (1)     If the Court of Appeal allows an appeal under section 430R, it must set aside the sentence imposed by the appellate court and either—

        (a)     impose the sentence, whether more or less severe, that it considers appropriate; or

        (b)     remit the matter to the appellate court.

    (2)     If the Court of Appeal remits a matter to the appellate court under subsection (1)(b)—

        (a)     it may give directions concerning the manner and scope of the further hearing by the appellate court, including a direction as to whether the hearing is to be conducted by the same judge or a different judge; and

        (b)     the appellate court, whether constituted by the same or a different judge, must hear and determine the matter in accordance with the directions, if any.

    (3)     On the hearing of an appeal referred to in subsection (4), if the Court of Appeal finds the appellant guilty of 2 or more of the offences in respect of which the appellant was sentenced, the Court of Appeal may order—

        (a)     that the appellant be detained in a youth residential centre or a youth justice centre, as the case may be, for a period not exceeding the aggregate period specified in the original sentence; or

s. 69

        (b)     that the appellant be detained in a youth residential centre or a youth justice centre, as the case may be, for a separate period of detention in respect of each offence but so that the separate periods do not in the aggregate exceed the aggregate period specified in the original sentence.

    (4)     Subsection (3) applies to an appeal under section 430R against—

        (a)     a sentence which orders the appellant to be detained in a youth residential centre or a youth justice centre in respect of 2 or more offences for a specified aggregate period; or

        (b)     a conviction in respect of which a sentence referred to in paragraph (a) was imposed.

    (5)     Despite anything to the contrary in this Act, on an appeal under section 430R, the Court of Appeal may make a probation order, youth supervision order or youth attendance order in respect of a person even though at the time of making that order the person is of or over the age of 19 years but under 21 years.

Note

Section 586 provides that the Supreme Court may exercise the sentencing powers of the Children's Court.

        430V     Powers and procedure

Division 7 of Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009 applies as if a reference to that Part were a reference to this Division.

        430W     DPP may refer point of law to Court of Appeal

    (1)     If a person is acquitted in respect of all or any charges on an appeal to the County Court or the Trial Division of the Supreme Court from the Children's Court, the DPP may refer to the Court of Appeal any point of law that has arisen in the proceeding.

    (2)     The Court of Appeal is to consider a point of law referred to it under subsection (1) and give its opinion on it.

    (3)     An acquitted person who appears in court in person or by a legal practitioner is entitled to reasonable costs as settled by the Costs Court.

    (4)     A reference under this section does not affect the hearing in relation to which the reference is made or an acquittal in that hearing.

Division 7—Status of sentence and orders during appeal period

        430X     Sentence not stayed during appeal period

    (1)     A sentence is not stayed during the appeal period unless—

        (a)     this Act or any other Act otherwise provides; or

        (b)     an order is made under subsection (2).

    (2)     If a notice of application for leave to appeal is filed under section 430S, the Court of Appeal may stay a sentence if satisfied that it is in the interests of justice to do so.

Note

See the definitions of appeal period and sentence in section 3.

        430Y     Bail pending appeal

    (1)     A person detained in a youth residential centre or youth justice centre who appeals, or applies for leave to appeal, to the Court of Appeal may apply to the Court of Appeal to be granted bail.

    (2)     On an application under subsection (1), the Court of Appeal may grant the detained person bail pending the appeal.

Note

See section 323 of the Criminal Procedure Act 2009 for bail following appeal.

        430Z     Stay of certain orders during appeal period

    (1)     This section applies to an order under section 84, 85B or 86 of the Sentencing Act 1991 made by the Trial Division of the Supreme Court or the County Court.

Note

See section 83G(1) of the Sentencing Act 1991 in relation to superannuation orders.

    (2)     Unless the Trial Division of the Supreme Court or the County Court otherwise directs, an order referred to in subsection (1) is stayed during the appeal period.

    (3)     If an order is stayed under subsection (2) and the conviction is set aside on appeal, the order does not take effect unless the Court of appeal otherwise orders.

    (4)     The Court of Appeal may set aside or vary an order made by the Trial Division of the Supreme Court or the County Court under subsection (2).

    (5)     Rules of court may provide for securing the safe custody during the appeal period of any property the subject of an order referred to in subsection (1).

        430ZA     Execution of order for forfeiture or destruction of property

    (1)     If a court orders the forfeiture or destruction of any property in relation to an offence, the property must not be forfeited or destroyed during the appeal period unless earlier forfeiture or destruction is permitted by any other law.

    (2)     This section does not apply to orders made under the Confiscation Act 1997 .

    (3)     Rules of court may provide for securing the safe custody during the appeal period of any property the subject of an order referred to in subsection (1).

Division 8—Miscellaneous

        430ZB     Appeal by child under 15 years

If an appellant is a child under the age of 15 years, the appeal may be made on the child's behalf and in the name of the child by—

        (a)     the child's parent; or

        (b)     in the absence of the parent, the Secretary.

        430ZC     Parent may enter into bail

    (1)     If the child is granted bail with or without a surety pending an appeal under this Part but it appears to the court granting bail that the child does not have the capacity or understanding to enter into bail, the child's parent or any other person may enter into bail as principal.

    (2)     The bail entered into under subsection (1) must be—

        (a)     in an amount determined by the court granting bail; and

        (b)     on condition that the person produce the child at the court to which the appeal is made at a place and on a day to be fixed by the registrar of the County Court or as directed by the court to which the appeal is made (as the case requires).

        430ZD     Appeals to be heard in open court

    (1)     Proceedings on an appeal under this Part are, subject to subsection (2), to be conducted in open court.

    (2)     The court hearing the appeal may order that—

        (a)     the whole or any part of a proceeding be heard in closed court; or

        (b)     only persons or classes of persons specified by it may be present during the whole or any part of a proceeding.

    (3)     A court may make an order under subsection (2) on the application of a party or any other person who has a direct interest in the proceeding or on its own motion.

    (4)     Any party to the proceeding and any other interested person has standing to support or oppose an application under subsection (3).

    (5)     If an order has been made under this section, the court hearing the appeal must cause a copy of the order to be posted on a door of, or in another conspicuous place at, the place at which the court is sitting.

    (6)     An order posted under this section must not contain any particulars likely to lead to the identification of a child who is a party to the proceeding.

    (7)     A person must not contravene an order made and posted under this section.

Penalty:    

        (a)     In the case of a person of or above the age of 18 years, 25 penalty units or 6 months imprisonment; or

        (b)     In the case of a child of or above the age of 15 years, 25 penalty units or detention in a youth justice centre for 6 months; or

        (c)     In the case of a child under the age of 15 years, 12 penalty units or detention in a youth residential centre for 3 months.

        430ZE     Legal representation

Section 524 applies, with any necessary modifications, to appeals under this Part as if—

        (a)     a reference to the Court or the Criminal Division were a reference to the court hearing an appeal under this Part; and

        (b)     a reference to a proceeding referred to in section 525(2) were a reference to an appeal under this Part.

        430ZF     Interpreters

If the court hearing an appeal under this Part is satisfied that a party to the appeal has a difficulty in communicating in the English language that is sufficient to prevent him or her from understanding, or participating in, the appeal, the court must not hear and determine the appeal without an interpreter interpreting it.

        430ZG     Explanation of and reasons for orders

    (1)     If the court hearing an appeal makes an order in relation to bail or makes a final order in relation to the appeal, the court must explain the meaning and effect of the order as plainly and simply as possible and in a way which it considers the parties to the appeal will understand.

    (2)     An explanation under subsection (1) must be given through an interpreter to a party to the appeal who the court considers has a difficulty in communicating in the English language that is sufficient to prevent him or her from understanding the explanation given by the court.

Division 9—Costs on appeal

        430ZH     No costs on appeal or new hearing

No costs are to be allowed to a party to—

        (a)     an appeal under this Part; or

        (b)     a new hearing; or

        (c)     a proceeding preliminary or incidental to an appeal or new hearing.

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