7. CRIMINAL DIVISION - GENERAL TABLE OF CONTENTS 7.1 Jurisdiction of Criminal Division 7.1.1 7.1.2 7.1.3 7.1.4 7.1.5 7.2 7.3 General powers of arrest Victoria Police Powers to search children & adults 7.3.1 7.3.2 7.3.3 7.3.4 7.3.5 7.3.6 7.4 7.5 Referral re protection application investigation Referral re therapeutic treatment application investigation Report of investigation Report on outcome of application Pre-sentence report The Children’s Koori Court (Criminal Division) 7.11.1 7.11.2 7.11.3 7.11.4 7.11.5 7.11.6 7.12 Youth and adult offending in 2008/09, 2009/10 & 2010/11 Youth offending from 2008/09 to 2019/20 Offending by children aged 10-13 inclusive from 2017/18 to 2020/21 Warrant to arrest for failing to appear (Bench warrant) Representation of children in the Criminal Division of the Court Referral for investigation by protective services 7.10.1 7.10.2 7.10.3 7.10.4 7.10.5 7.11 Charge-sheet Time limits for filing a charge-sheet Notice to Appear Securing attendance of accused Amendment of charge-sheet Venue of the Court Criminal Division case processing statistics Children and Young Persons Infringement Notice System (CAYPINS) Youth and adult offending statistics 7.7.1 7.7.2 7.7.3 7.8 7.9 7.10 Personal searches of adults and children generally Legal analysis of police powers to search adults and children Three types of personal search described Statutory police powers to search a child whether or not under arrest Personal searches of persons under arrest Personal searches of children in custodial institutions "Police Cautioning Programme" as a means of diversion from court Commencement of ordinary process – Securing attendance of child 7.5.1 7.5.2 7.5.3 7.5.4 7.5.5 7.5.6 7.5.7 7.6 7.7 Classification of offences Age of ‘child’ for hearing of a charge No criminal responsibility of a child under 10 Transfer of the hearing of a charge to or from Magistrates’ Court Age of ‘child’ for breach, variation & revocation proceeding Jurisdiction & powers Procedure Sentencing procedure Sitting times and locations Case law Statistics Cases on selected offences 7.12.1 Offensive behaviour 7.12.2 Insulting words in a public place 7.12.3 Arson 7.13 ‘Crossover kids’ & impact of a child’s mental development on offending Produced by former Magistrate Peter Power for the Children's Court of Victoria Last updated 26 November 2021 7.1 7.14 Papers on aspects of the criminal law relating to children UNLESS INDICATED OTHERWISE, ALL LEGISLATION REFERRED TO IS VICTORIAN. 7.1 Jurisdiction of Criminal Division When we refer to the jurisdiction of a court we are talking about its legal power to hear and determine a particular matter. Part 7.2 of the Children, Youth and Families Act 2005 [No.96/2005] ['CYFA'] defines and delineates the jurisdiction of each of the three Divisions of the Children's Court of Victoria. It is clear from s.1(c) of the CYFA that one of the main purposes of the Children's Court is to deal with children who have been charged with, or who have been found guilty of, offences. Under s.516(1) of the CYFA, the Criminal Division of the Court has the following jurisdiction: (a) to hear and determine all charges against children for summary offences; (b) subject to s.356 of the CYFA, to hear and determine summarily all charges against children for indictable offences other than the following 7 offences ('the 7 death offences'):  murder;  attempted murder;  manslaughter;  child homicide;  homicide by firearm;  arson causing death [s.197A of the Crimes Act 1958];  culpable driving causing death [s.318 of the Crimes Act 1958]; (c) to conduct committal proceedings into all charges against children for indictable offences; (d) to grant or refuse bail to, or extend, vary, or revoke the bail of, a child who is charged with an offence; and (e) subject to Chapter 5 of the CYFA, to deal with a breach of a sentencing order or variation of a sentencing order. Section 516(3) of the CYFA provides that the above jurisdiction given by s.516(1) is additional to any other jurisdiction given to the Criminal Division by or under the CYFA or any other Act. Section 20C of the Crimes Act 1914 (Cth) provides that a child or young person who, in a State or Territory, is charged with or convicted of an offence against a law of the Commonwealth may be tried, punished or otherwise dealt with as if the offence were an offence against a law of the State or Territory. In Victoria in 2004 & 2005 less than half a percent of

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