This procedure relates to presenting a breach of a supervised court order in a children's court.

 

When to use this procedure

When prosecuting a breach in a children’s court.

 

What else you need to know

 

Practice context and legislation

  • The youth justice worker is required to present a breach in court and provide a report detailing the nature and circumstances of the breach and the extent to which the young person has complied with the order.
  • Youth justice must recommend an appropriate sentencing order in the breach report. If the young person is found to have re-offended or failed to observe a condition of the order, present the breach report to the court. Before the court makes an order relating to the breach, it must have received a breach report from youth justice.
  • Any report prepared by youth justice must be provided to the court, the young person, the legal practitioner representing the young person, and any other person whom the court has ordered to receive a copy within the legislative timelines for that order.
  • Youth justice has responsibility for presenting a case to the court if a breach is admitted. A proceeding for breach of a sentencing order must be commenced in the children’s court regardless of which court (the children’s court, County Court or Supreme Court) made the order.
  • If the breach is constituted by failing to comply with reporting conditions, youth justice is required to prepare a breach report and submit this to the court within the time frame specified by the court.
  • If the breach is constituted by re-offending, youth justice must await the outcomes of the new charges in court. It may expedite the proceeding if youth justice prepares the breach report before the hearing, so that the report can be handed to the court if the new offences and the breach are found proven. Alternatively, the court may adjourn any new matters, including offences which may breach an existing order, and request that youth justice provide a full pre-sentence report. In these cases, the pre sentence report specifies the breach and makes an appropriate recommendation.
  • if a breach is complex, is being heard in a higher court or is adjourned for contest, consult with your line manager about whether it is necessary to ask a departmental legal representative to prosecute the breach.
 

Roles and key tasks

Case manager

  • Make a decision to proceed with a breach in consultation with the team leader and team manager. Obtain authorisation from the Assistant Director / Manager Individual and Family Support. Present the breach in court and provide a report detailing the nature and circumstances of the breach and the extent to which the young person has complied with the order.

Team leader / team manager

  • Provide consultation on breach process and endorsement of breach report.
  • Issue warnings as required.

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 Family Support and the Senior Practice Advisor.
 

The procedure in detail

Prior to breach action

Ensure that all paperwork in relation to the breach has been completed correctly before attending court.

Refer to procedures for ‘Breach of active court orders’.

Prior to the court hearing

Present yourself to the court coordinator and advise them that you are appearing to present a breach. Provide the name of the young person.

If possible, meet with the young person and their legal representative before court to confirm that a breach proceeding has been issued and to clarify the young person’s plea.

Ensure that the breach report has been discussed with both the young person and legal representative.

If the breach is to be listed at short notice, prior consent must be obtained by the legal representative.

In these cases, serve the notice to appear before the court documentation on the young person, provide paperwork to the court coordinator, and ensure that the breach is listed to proceed on that day.

Procedure for breach in court

Ensure that you attend court prepared to read to the magistrate a summary of the reasons for the breach.

When the case is called, present yourself at the bar table and sit on the prosecution side. This is usually on the same side as the witness box.

The following instructions are recommended when prosecuting the breach:

Introduce yourself:

‘May it please the court, I [worker name], of youth justice, Department of Human Services, appear in relation to the breach of [young person’s name] [order].’

Await the magistrate’s instruction to proceed.

Outline the matter before the court:

‘I believe that [young person] pleads guilty to the breach of the [order].’

Give details of the current order:

‘On [date] at the [court], [young person] received a [order]. It is alleged that [young person] has breached the order by: ‘Commission of the following offences [list offences] during the operational period of the order’, or ‘Failure to comply with the conditions of the order by [list conditions and dates of non-attendances].’

‘I understand the breach is admitted.’

This information can be guided by the information contained within the breach report.

Only after the magistrate indicates the breach is found proven can the breach report be tendered to the court, and provided to the legal representative.

Tender breach report:

‘Your Honour, I tender the breach report, charges, and summaries for which the original order was imposed (tender to the court via the clerk). I have provided a copy to [young person’s representative].’

If the clerk is not present, request permission to approach the bench and tender the breach report.

After the magistrate’s decision:

Confirm the court outcome:

‘Your Honour may I confirm that [young person’s] order has been cancelled?’

or

‘Your Honour may I confirm that [young person’s] order has been confirmed?’

or

‘Your Honour may I confirm that [young person’s] order has incurred penalties for the breach?’

Conclude the matter:

‘That concludes my matters, Your Honour. May I be excused?’

Do not leave the bench until given permission to do so by the magistrate.

Procedure for breach of contested matter

If the young person or legal representative advises that the breach will be contested, this plea will be provided to the magistrate and a contest mention date will be arranged.

If a breach is adjourned to be contested, it is usual practice for youth justice to obtain legal representation to present the breach.

Procedure for consolidated matters

At the commencement of the young person’s court appearance, approach the bar table and introduce yourself in accordance with the usual procedure.

If other matters are being heard before the court, ensure that there is a finding of guilt for the new offences before presenting the breach to the court.

Procedure for breach of a county or supreme court order

In accordance with legislation, all breaches of county court and supreme court orders should be commenced in the children’s court.

During this proceeding, the court will determine if future proceedings related to the breach remain in the children’s court or will be transferred to the court in which the order was originally made.

At the commencement of the breach, inform the magistrate of the court in which the order was made and, refer the magistrate to s. 423 Children, Youth and Families Act for the magistrate’s consideration.

If the magistrate directs that the breach be transferred to the court that made the order, the proceeding will cease and court staff will make the necessary arrangements for the hearing to be heard in the higher court.

Young people aged 19 years or older

In accordance with s. 423 of the Act, the breach of an order against a person 19 years or older must commence in the children’s court, at which time the court will determine whether the proceedings remain in the children’s court or be transferred to a higher jurisdiction.

If the breach hearing is held in the magistrate’s court, you should liaise with Community Corrections Services.

The community corrections worker can provide information and/or advice on recommendations to provide to the court regarding the breach outcome.

At the commencement of the breach, advise the magistrate of the young person’s age and refer the magistrate to the relevant section of the Act.

If the magistrate directs that the breach be heard in the jurisdiction of the magistrates’ court the breach can proceed.

Failure to appear

If a young person fails to appear in court for the hearing of the breach application, youth justice may seek to have a warrant issued for the young person’s arrest.

The youth justice worker must still appear in court when the matter is called.

Inform the court of the young person’s failure to appear:

‘Your Honour, youth justice seeks that consideration be given to a warrant being issued. I tender the notice to appear and affidavit of service. The notice to appear was [issued by personal service] or [registered post to the last known address] or [left with a person over 16 years of age].’

Provide a copy of the notice to appear and affidavit of service.

If a bench warrant is issued by the magistrate the youth justice worker is to sign for the warrant. This is then lodged at Victoria Police Central Records.

When a young person is in custody

Complete a ‘Form 15: Order to bring a person before a court, including coroner's court’ and arrange for it to be signed by a magistrate. A 'Form 15' is the formal documentation required to bring a person before the court.

Inform centre staff of the forthcoming breach proceeding and fax a copy of the signed 'Form 15' to the assigned custodial worker.

After court

Obtain copies of any new order and paperwork relevant to the proceeding.

Ensure the young person has understood what has occurred and make arrangements for any new order that has been made.

Explain to the young person the order that was made and its effect, including any additional comments the magistrate may have made during the hearing.

Ensure the young person is aware of all immediate obligations to which they are subject, including their first reporting appointment if they have been placed on an order.

If the young person is in custody, ensure that all relevant information is provided to the assigned custodial worker.