Use this procedure when making an application to the court to appeal a finding of guilt or the length or type of an order.

 

When to use this procedure

When working with a young person who is considering lodging an appeal.

 

What else you need to know

Make sure you have read and understood the following procedures:

 

Practice context and legislation

  • When a young person is found guilty in a children's court (criminal division), or in a magistrate's court or the County Court in regards to a youth justice centre order, they can apply to the court to appeal against the finding, sentencing or duration of the order.
  • The sentencing principles that apply in children's courts are different to those that apply in adult courts. When dealing with an adult, a judge or magistrate is required to balance principles of deterrence, punishment, denunciation, protection of the community and rehabilitation. In a children's court, the primary goal is the rehabilitation of young offenders and it is imperative that the sentencing magistrate takes this into consideration when imparting a disposition. Sentencing in the children's court focuses on supporting the young person within the community wherever practicable and appropriate. This may lead to the court placing a young person on a disposition that would be considered inappropriate for older, more mature people.
  • Section 424 of the Children, Youth and Families Act 2005 makes provision for a young person to appeal if they believe that they have been wrongfully found guilty, or the penalty imposed was too harsh. The appeal is made to the County Court via written application. If the decision has been made by the President of the children's court, any appeal must be made to the Supreme Court.
  • An appeal can be made at the end of the hearing of the young person's case or up to 30 days from the date of the hearing. It is important that youth justice workers support young people to access all the information necessary to pursue the appeal, including assistance to obtain a legal representative.
  • When a young person appeals a community based disposition, that order is 'stayed' or suspended or postponed until the appeal is abandoned or heard by the court. In these circumstances, the conditions of the order do not have force and supervision must cease during the time the appeal is awaiting hearing.
  • When a young person appeals against a sentence of detention, the order is stayed only if the young person is granted bail. If the young person is not granted bail, youth justice precinct staff will ensure the young person has access to a legal representative, and will develop a plan to support the young person's application.
  • The premise for making an application to the court to appeal a finding of guilt or the length or type of order is to ensure the order is aligned with the values of the children's court and the correct application of the law.
 

Roles and key tasks

Youth justice court advice service worker

  • If a young person intends to appeal a court outcome, advise them of their right to appeal and encourage them to access legal representation.

Case manager

  • Advise the young person of their right to appeal a court order.
  • Prior to the young person lodging the appeal, explain the order and the effect of that order to the young person.
  • Advocate for the young person to obtain legal representation before lodging an appeal.

Youth justice precinct worker

  • Advocate for the young person to obtain legal representation before lodging an appeal.
  • Support the young person to develop a plan for their application for appeal and, where applicable, bail.

Team leader / team manager

  • Endorse any reports prepared by the case manager.
  • Provide consultation on, and endorsement of, case management decisions

Assistant Director / Manager Individual and Family Support

  • Provide oversight, direction and monitoring of the area youth justice service.
  • Provide case consultation regarding young people exhibiting high-risk behaviours.

Youth Justice Senior Practice Advisor

  • Provide case consultation in relation to court recommendations, breaches and particularly for high-risk young people. This should occur subject to local area agreements between Assistant Director / Manager Individual and Family Support and the Senior Practice Advisor.

 

 

The procedure in detail

When to order an appeal

A young person has the right to appeal to the County Court against any sentencing disposition imposed against them by a children's court (criminal division) if they believe:

  • they have been wrongfully found guilty
  • the penalty is too harsh, either in length or type of order.

The young person is not required to show any error by the magistrate and the appeal proceeds by the way of a rehearing.

The role of the youth justice case manager is to:

  • advise the young person of their right to appeal the order
  • explain the order to the young person and the effect of the order before the young person lodges the appeal
  • advocate for the young person to obtain legal representation before lodging an appeal.

A youth justice worker should not, under any circumstances, provide legal advice to a young person, particularly in relation to whether they should pursue an appeal.

The young person can appeal to the Supreme Court on a question of law, but once this has occurred the young person is deemed to have abandoned any right under the Children, Youth and Families Act 2005 or any other Act to appeal to the County Court. The young person must show that the magistrate made an error of law.

The young person, with the assistance of legal representation, may inform the magistrate of their intention to appeal the order on the day of court.

The young person has 30 days following the order being made to lodge the appeal. An appeal can be lodged after the initial 30 days but only with permission from the County or Supreme Court.

How to lodge an appeal

The young person lodging the appeal must attend the court personally in order to complete the paperwork.

If, however, the appellant is less than 15 years of age, an appeal may be lodged on the child's behalf by the child's parent/guardian or, in their absence, a delegate of the secretary of the Department of Human Services.

The appeal papers can be obtained from any court registrar or from a custodial worker of the institution where the young person is detained. It is preferable to obtain the papers at the court where the case was heard.

The young person must sign an undertaking to proceed with the appeal in front of an authorised person (usually a court registrar).

The young person will be advised of the date and time of the appeal at the time of lodging the appeal.

Order status during the appeal process

When a young person appeals a community based sentence, that sentence is 'stayed' (suspended) until the appeal is abandoned or determined by the court.

In these circumstances, the conditions of the order do not have force and supervision must cease during the time the appeal is awaiting hearing.

When a young person appeals against a sentence of detention, the order is stayed only if the young person is granted bail.

If the young person is not granted bail, youth justice precinct staff will ensure the young person has access to a legal representative and start to develop a plan to support the young person's application.

When determining an appeal, the court must set aside the original sentence and may impose any sentence considered appropriate and which the court made or could have made, including replacing a non-custodial sentence with a custodial sentence.

The sentence can be backdated to the date of the original sentence, but it is still a sentence of the appellate court.

If the original order was stayed, any reoffending that occurred during the period of the stay is not deemed a breach of the order.

After the appeal

After the appeal has been heard, the youth justice worker provides the young person with the details of the court outcome, explaining any changes made to the original order.

If appropriate, arrange a follow-up appointment at the youth justice unit within two working days for intake to occur.

If the young person has appealed to the Supreme Court on a question of law, the Supreme Court can send the case back to the children's court for rehearing.

Appeals within magistrate's courts for persons aged 18–21 years.

As per section 412 of the Children, Youth and Families Act, a young person can be sentenced within the magistrate's court to a youth justice centre order if they are aged 18 years or more but under 21 years at the time of sentencing.

If the young person wishes to appeal a youth justice centre order made within the magistrate's court, the above process remains; however, if the young person is refused bail awaiting the outcome of the appeal, they will be remanded within an adult facility.

The court may, despite anything contrary to the Children Youth and Families Act, make a probation order, youth supervision order or youth attendance order in respect of a young person even though at the time of making the order the person is 19 years or older but less than 21 years.

Failure to attend appeal hearing

If the young person fails to appear at the appeal hearing, a warrant to arrest may be issued.

If on execution of this warrant the application cannot be dealt with immediately, bail may be granted

Recording appeals on CRIS

Although youth justice supervision does not occur when a young person is placed on an order that is stayed, the court appearance and order should be created on CRIS until it can be confirmed that the order has been stayed.

Any contact and communication with the young person should also be recorded on CRIS.

Once confirmation of the appeal being lodged is received, the order outcome should be recorded on CRIS as 'Other – order stayed pending appeal' for young people released on bail or on a community based sentence, or 'Remand' for young people who are remanded.

A case note confirming the status of the appeal should also be created.

Upon finalisation of the appeal, the order outcome should be updated to reflect the appeal outcome:

  • 'Active' – if the court imposes a sentence similar to the original sentence or if the appeal is abandoned. Update the effective date to reflect the date the appeal was finalised or abandoned.
  • 'Varied on appeal to XXXX' – if the court imposes a sentence different to the original sentence.
  • 'Other – order quashed on appeal' – if the court directs that the original order be quashed and does not impose a new sentence.