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Breach of Conditional Release Bonds After Conviction

Breach of Conditional Release Bonds After Conviction

The content on this page was last reviewed on 13 December 2022.

1. Overview

Section 20A outlines the power of the court to deal with a person who has been discharged in pursuance of an order under s 19B(1), or released in pursuance of an order under s 20(1), and who, without reasonable cause or excuse, fails to comply with a condition of the order.

No person may be imprisoned for a failure to comply with an order to pay reparation, restitution or compensation or an amount in respect of costs made under s 20(1)s 20(1)(2A).

Court proceedings to determine breach must comply with the requirements of natural justice and criminal standards of proof: Leckie; Ex parte Felman (1977) 18 ALR 93.1

A magistrate before whom an information is laid about the failure of an offender to comply with a condition of the recognizance may, provided the complaint is made before the expiration of the recognizance period:

Section 20A(1)

  • (a) issue a summons directing the person to appear, on a date, at a time and at a place fixed in the summons, before the court by which the order was made; or
  • (b) if the information is laid on oath and the magistrate is of the opinion that proceedings against the person by summons might not be effective – issue a warrant for the apprehension of the person.

Section 20A(1A) provides that where the breach of a condition of the order constituted a commission by the person of an offence, the information can be laid at any time.

The court may also order that any recognizance or surety be entreated and any security enforced: s 20A(7).

Under the Crimes Act 1914 (Cth) s 20A(6), in determining the action to be taken by the court against the offender for the breach of the conditional release order, the court is to take into account:

  • the fact that the order was made: s 20A(6)(a);
  • anything done under the order: s 20A(6)(b); and
  • any other order made in respect of the offence or offences: s 20A(6)(c).

In Stevens v McCallum [2006] ACTCA 13, the ACT Court of Appeal explained at [93]–[94] that sentencing following a breach of recognizance involves two discretionary decisions:

The first is whether the breach is of such gravity and consequence as to require treatment of the recognizance and, hence, reconsideration of the original sentence. That is a process not unlike that of breach of contract. Is the breach sufficiently serious that the agreement should be regarded as ended? The next is a consideration, in the light of the breach, of the original sentence.

The New South Wales Court of Criminal Appeal in Morris (Unreported, Court of Criminal Appeal, 14 July 1995), cited in Doyle (1996) 84 A Crim R 287, 290 stated that:

[A sentence for breach] may not, of course, exceed that sentence which is appropriate to the objective circumstances; but it should usually reflect the fact that by his rejection of the trust placed in him by the previous sentencing court, the offender will have shown a lack of remorse and cast doubt upon his prospects of rehabilitation.

In Astle v Twort [2021] WASC 445, Hall J stated at [11] that ‘[t]here is no presumption in favour of immediate imprisonment for breach of a s 20(1)(b) order under the Crimes Act’.

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2. Breach of s 20(1)(a) order

Where the court is satisfied that a person who has been released in pursuance of an order made under s 20(1)(a) has failed to comply with a condition of the order without reasonable cause or excuse, the court may:

  • impose a pecuniary penalty not exceeding 10 federal penalty units on the person while allowing the original order to stand: s 20A(5)(b)(i); or
  • revoke the order and deal with the person for the offence in respect of which the order was made as though the offender was before the court for sentence in respect of the offence: s 20A(5)(b)(ii); or
  • take no action: s 20A(5)(b)(iii).

Note: any pecuniary penalty imposed under s 20A(5)(b) shall be subject to the same mechanisms of enforcement as a fine imposed for an offence against the law of the Commonwealth: see Fines.

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3. Breach of s 20(1)(b) order

Where the court is satisfied that a person who has been released in pursuance of an order made under s 20(1)(b) has failed to comply with a condition of the order without reasonable cause or excuse, the court may:

  • impose a monetary penalty not exceeding $1000: s 20A(5)(c)(ia); or
  • amend the order so as to extend the period for which the person is required to give security to be of good behaviour, provided that the period as extended does not exceed 5 years: s 20A(5)(c)(ib); or
  • revoke the order and make an order under s 20AB: s 20A(5)(c)(ic); or
  • revoke the order and order that the person be imprisoned for the part of each sentence of imprisonment fixed under s 20(1)(b)s 20A(5)(c)(i); or
  • take no action: s 20A(5)(c)(ii).

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4. Appeal

Conditional orders under s 20(1) and revised orders under s 20A following a breach are all subject to appeal: ss 19B(3), 20(3), 20A(8).

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  1. Arie Freiberg, Sentencing: State and Federal Law in Victoria (3rd ed, 2014), [10.180]; see also Oatley v CDPP [2021] SASCA 108, [48]–[55].[]
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