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S40 Reviews

Section 40 Reviews before the President, Children’s Court of Western Australia

Following an offender being sentenced by a Magistrate, the offender or the prosecutor can seek a review of the sentence by the President. This review process is provided for in section 40 of the Children’s Court of Western Australia Act 1988 (WA). The process proceeds to an early listing before the President and avoids the filing of an appeal to the Supreme Court of Western Australia.

Selected anonymised transcripts in relation to Section 40 Reviews before the President are available to download from this webpage.

An extract of section 40 appears below.

CHILDREN'S COURT OF WESTERN AUSTRALIA ACT 1988 - SECT 40

40 . Review by President of certain sentences

  1. Subject to this Act, where the Court, when constituted so as not to consist of or include a judge, makes a finding that a charge against a person is proved and makes an order against or in relation to the person in consequence of that finding, the Court when constituted by the President may, of its own motion or upon an application made under subsection (2), reconsider the order and -
    1. confirm the order; or
    2. discharge the order and substitute any other order that the Court, if it had been constituted by the President, could have made in relation to the offence.
  2. Subject to this section, an application for reconsideration of an order may be made, in accordance with the rules of court -
    1. by the person, within one month after the date of the order;
    2. if the person is a child, by the CEO (young offenders), on behalf of the child, at any time after the date of the order;
    3. by the prosecutor, within one month after the date of the order.
  3. Where an application has been made under this section for reconsideration of a custodial sentence, an application may be made to the Court under the Bail Act 1982 by or on behalf of the child and, if such an application is made, section 8 of that Act applies as if the consideration of bail for the purposes of this section were a first consideration of bail for an offence.
  4. The Court shall notify the applicant and all other parties concerned with the application of the place, date and time for the hearing of the application.
  5. Subject to subsection (6), where leave to appeal is granted under section 41 in respect of the original order -
    1. no application under this section may subsequently be made; and
    2. any application made under this section and not finally determined when leave to appeal is granted under section 41 shall be deemed to be withdrawn.
  6. Where an application under this section or an application for leave to appeal is withdrawn, all other parties concerned shall be notified accordingly, and thereupon an application for leave to appeal may be made, or an application may be made under this section, as the case may require, in all respects as if the date of that withdrawal were the date upon which the original order was made.
  7. This section applies in respect of a finding and order made by a magistrate whether or not the magistrate exercised extended powers conferred under section 22.
  8. An appeal shall lie to the Court of Appeal from any order made by the Court under this section.

Last updated: 21-Mar-2017

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