List of Subheadings
- 1. Overview
- 2. Application of s 20
- 3. Conditional release without passing sentence: s 20(1)(a)
- 4. Recognizance Release Order after passing sentence of imprisonment: s 20(1)(b)
- 4.2.1 Fully suspended sentence should not be regarded as ‘no punishment’
- 4.2.2 Fully suspended sentence may not provide adequate general deterrence
- 4.2.3 Suspended sentences and rehabilitation
- 5. Variation and Cancellation of Orders
The content on this page was last reviewed on 28 April 2021.
The Crimes Act 1914 (Cth) empowers the court to release an offender conditionally, either:
Where a conviction is not recorded, a s 19B(1)(d) conditional release order is the only option available to the court, other than outright dismissal of the charges. Section 19B(1)(b) lists the factors the court must consider in exercising the discretion to not record a conviction. For further commentary see: Options without Proceeding to Conviction.
A conditional release order under s 20 follows the recording of a conviction against the offender.
2. Application of s 20
Section 20 gives the court discretion to conditionally release a convicted federal offender:
A court ordering release under s 20(1)(a) must use Form 11.
A court ordering release under s 20(1)(b) must use Form 12.
Both forms are contained in Schedule 1 of the Crimes Regulations 2019 (Cth).
2.1 Explanation of order to offender
Before making a conditional release order under s 20(1), the court is required to explain to the person the purpose and effect of the order, the consequences of breach of the order and the possibility that the recognizance may be varied or discharged: s 20(2). An offender must enter into a conditional release order voluntarily.1
The court must also cause the order to be reduced to writing, and have a copy given to or served on the offender, as soon as practicable: s 20(4).
3. Conditional release without passing sentence: s 20(1)(a)
Under s 20(1)(a) the court may release the person without passing sentence, and order that the offender, upon giving security (with or without sureties):
- be of good behaviour for a period not exceeding 5 years: s 20(1)(a)(i); and
- make reparation or restitution, or pay compensation or costs in respect of the offence (if any): s 20(1)(a)(ii); and
- pay the Commonwealth a pecuniary penalty (if any) not exceeding an amount calculated in accordance with the conditions of s 20(5): s 20(1)(a)(iii); and
- comply, for a period not exceeding 2 years, with other orders the court thinks fit to specify (if any): s 20(1)(a)(iv).
3.1 Factors to be taken into account in ordering conditional release
Section 20(1)(a) does not identify specific factors for the court to consider in ordering conditional release. However, the court must have regard to the factors set out in s 16A(2): see further Application of s 16A(2).
3.2 Good Behaviour
Under s 20(1)(a)(i), a convicted federal offender who is conditionally released must comply with the condition to be of good behaviour for the period that the court specifies in the order. However, this period cannot exceed 5 years.
3.3 Reparation, restitution, compensation or costs
Under s 20(1)(a)(ii), the court can attach conditions of restitution or reparation to conditional release orders. Such a condition will not affect the right of the victim to make a civil claim for compensation or reparation.2
To ensure that conditional release orders are not constructed in a way that is contrary to s 20(2A), the court has recommended that, in certain circumstances, a reparation or compensation order be made pursuant to s 21B rather than as a condition of release under s 20(1)(a): Johannessen v Lee (1992) 24 ATR 306; see also Hayes v The Queen  VSCA 309, , . Section 21B(2) also provides that a person is not to be imprisoned for a failure to pay in accordance with a reparation order.
See further Reparation Orders.
3.4 Pay the commonwealth a pecuniary penalty
Under s 20(5), the maximum amount of the penalty that a court may specify in relation to a person is as follows:
- where the offence is punishable by a fine, the amount of the maximum fine that the court is empowered to impose on the person for the offence; or
- where the offence is not punishable by a fine
- if the court is not a court of summary jurisdiction: 300 penalty units; or
- if the court is a court of summary jurisdiction: 60 penalty units.
Note: A penalty unit is defined under s 4AA of the Crimes Act 1914 (Cth).
3.5 Other Orders
Under s 20(1)(a)(iv), the court can impose any condition it thinks fit to specify as a condition of a good behaviour bond. However, any conditions imposed, other than that the offender be of good behaviour, cannot exceed 2 years.
A condition could be that the person will undertake a specified counselling, education or treatment program: s 20(1)(a)(iv).
Community service cannot be imposed as a condition under s 20(1)(a)(iv) or (b).3 In Dimech v Watts  ACTSC 221, Elkaim J held that community service could not be validly imposed as a condition of a recognizance release order, stating at  that:
[O]n first reading, this subsection [s 20(1)(a)(iv)] might be seen to encompass a community service order. However, having regard to the example given in the legislation, it is my view that the scope of the subsection does not encompass a sentencing option not already covered, although would allow for a condition going to, for example, rehabilitation.
3.6 Ordering supervision by probation officers
If the court specifies as a condition that the person be subject to the supervision of a probation officer and obey all reasonable directions of that probation officer, the court must also specify the condition that the person will not travel interstate or overseas without the written permission of the probation officer: s 20(1A)
3.7 Invalid orders
Conditions must not be incompatible with the provisions of other statutes, nor inconsistent with public policy: R v Theodossio and Said  QCA 412 at . In that case, the Court explained at :
[T]he existence and content of the policy should be clear beyond argument. Public policy can often be difficult to discern or define and as a basis for judicial decision making can give rise to too great a latitude for subjectivity.
Conditions must be reasonable; they must not be illegal, impossible to fulfil or beyond the power of the court to impose: R v Keur (1973) 7 SASR 13, 15.
A condition must not be too uncertain to be enforced: Macpherson v Beath (1975) 12 SASR 174, 180. In that case, the Court upheld an appeal against a condition of recognizance imposed in respect of offences against the law of South Australia. The offender was required to ‘pledge himself under the sanction of twenty-eight days imprisonment to obey the reasonable directions and to be at all times courteous to members of the administrative and teaching staff of any educational institution which he might be attending”.4 Bray CJ stated at 180 that:
I think this condition is bad for several reasons. In the first place I think it is too uncertain to be enforced and hence oppressive. The appellant must be able to know just what conduct during the next two years will subject him to automatic incarceration. What directions are “reasonable”? What does “courteous” mean in this context? Standards of courtesy vary. Must he get to his feet every time a lecturer enters the room and address him or her as “Sir” or “Madam”, as the case may be?
If a condition which is held to be invalid is separate and independent, it will be severable from the recognizance and will not invalidate the operation of any other legally imposed conditions. However, if a condition is not severable it may render the entire recognizance invalid.5
4. Recognizance Release Order after passing sentence of imprisonment: s 20(1)(b)
A recognizance release order can only be ordered in relation to a sentence that does not exceed 3 years. See further Non Parole Period and Recognizance Release Orders.
4.1 Steps to be followed in deciding whether to impose recognizance release order
When imposing a recognizance release order, a court must first determine that a sentence of imprisonment is appropriate: see s 17A. The court can then order that the offender be released either immediately (without serving any period of imprisonment), or after serving only a portion of the sentence of imprisonment.
If the offender is being sentenced for a Commonwealth child sex offence, the offender can only be released immediately on a recognizance release order if exceptional circumstances apply. 7
… the question whether to release a federal offender forthwith under s 20(1)(b) of the Crimes Act is part of a process which may involve three steps. The steps are as follows. First, all relevant sentencing factors (notably, those referred to in s 16A) must be taken into account in deciding whether to impose a term of imprisonment and, if so, the length of the term. Secondly, it may be necessary for the court to consider whether, pursuant to s 19AC(4), it should decline to make a recognizance release order in respect of the offender. Ordinarily, s 19AC(1) requires a court to make a recognizance release order where a person is convicted of a federal offence and the court imposes a term of imprisonment not exceeding 3 years, but that provision is subject to, relevantly, s 19AC(4). Thirdly, the court must take into account, in deciding whether to release the offender forthwith under s 20(1)(b), the same factors as those applicable to the imposition and fixing of the term of imprisonment (notably, those referred to in s 16A). However, the weight to be given to these factors, and the manner in which they are relevant, will differ as a result of the different purposes underlying each function (emphasis added).
4.2 Factors to be taken into account in ordering a recognizance release order
The court must have regard to the factors set out in s 16A(1)-(2) in making recognizance release orders: see further Sentencing Factors. In Hili v The Queen  HCA 45, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ of the High Court cited with approval the passage from R v Ruha, Ruha & Harris; Ex parte Commonwealth DPP  QCA 10,  at :
As the Court of Appeal rightly said, s 16A(1) and (2) “make it plain that all of the circumstances, including the matters in the non-inclusive list in s 16A(2), must be taken into account in making recognizance release orders just as they must be taken into account in imposing a sentence of imprisonment”. In determining what recognizance release order is to be made, s 16A(1) requires the sentencing court to “make an order that is of a severity appropriate in all the circumstances of the offence”.
4.2.1 Fully suspended sentence should not be regarded as ‘no punishment’
Australian courts have rejected the argument that a fully suspended sentence in effect amounts to no punishment at all.8 In R v Nahlous  NSWCCA 90, Adamson J (Hoeben CJ at CL and Davies J agreeing) stated at  that:
This Court has consistently emphasised that a suspended sentence is a sentence in its own right and ought not be regarded as no punishment at all: R v Zamagias  NSWCCA 17 at . As Bray CJ, (Bright and Zelling JJ agreeing) said in Elliott v Harris (No 2) (1976) 13 SASR 516 at 527, that view:
“… reveals an entirely mistaken and wrong-headed approach to the question of suspended sentences. So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency.”
4.2.2 Fully suspended sentence may not provide adequate general deterrence
Where the court concludes there is a need for general deterrence, this may be a factor pointing away from fully suspending the sentence. In Sweeney v Corporate Security Group  SASC 324, Perry J noted at – that:
There can be no doubt that it [a suspended sentence] is a “real punishment” vis a vis the defendant, but other considerations may arise in the context of general deterrence.
Extensive media reporting of controversial criminal cases and public comment, debate and expressions of concern as to the adequacy of sentencing, is at an unprecedented level.
Courts do not operate in a vacuum.
While it would be wrong to allow such pressures to deflect courts from their duty to do justice according to the law, in the area of criminal sentencing, public concerns may properly be given some recognition.
If it appears that the common public perception is that a suspended sentence is not a punishment at all, in cases where, consistently with the principle, the sentence must reflect a need for general deterrence, it is doubtful if that object will be achieved where the sentence is suspended.
In such circumstances, it is pointless for courts to emphasise that a suspended sentence is a real sentence, if in the public arena its protestations fall on deaf ears.
The object of general deterrence will never be achieved by the imposition of sentences which the public regards as derisory (emphasis added).
For example, in R v Saleh  NSWCCA 299, the Court noted the need ‘to bear in mind the well-known proposition that a suspended sentence provides little if anything by way of general deterrence’.9 The offender had pleaded guilty to defrauding the revenue contrary to s 233BABAD of the Customs Act 1901 (Cth). He was sentenced at first instance to imprisonment for 20 months, suspended upon a condition that he enter into a recognisance to be of good behaviour for that period. The Court of Appeal held that the sentence imposed was manifestly inadequate as a result of the failure to direct attention to general deterrence, and the offender was resentenced to imprisonment for 3 years to be released on recognizance after serving 2 years.10
4.2.3 Suspended sentences and rehabilitation
The need for general deterrence must be balanced by the opportunity that a suspended sentence can provide for the rehabilitation of the offender.11 For example, in R v Philpot  ACTSC 96, Murrell CJ imposed a sentence of 19 months’ imprisonment for an offender convicted of using a carriage service to solicit child pornography material contrary to s 474.19(1)(a)(iv) of the Commonwealth Criminal Code. In deciding that the offender should be released immediately on recognizance, she took into account the fact that the offender had sought treatment and was continuing to engage with health professionals, with the support of family and friends. Murrell CJ stated at  that:
In considering the manner in which that sentence should be served, I pay full regard to the objective seriousness of the matter but when I look at the purposes of sentencing I find that the community will be best protected if the offender continues with the rehabilitation that he is currently undergoing (emphasis added).
Note that following legislative amendments to s 20(1)(b), these circumstances would now need to amount to exceptional circumstances to allow for immediate release on recognizance. See s 4.6 below.
See further Rehabilitation.
4.3 Imposing conditions under recognizance release orders
These four conditions are that the offender:
- be of good behaviour for a period not exceeding 5 years: s 20(1)(a)(i);and
- make reparation or restitution, or pay compensation or costs in respect of the offence (if any): s 20(1)(a)(ii);and
- pay the Commonwealth a pecuniary penalty (if any) not exceeding an amount calculated in accordance with the conditions of s 20(5): s 20(1)(a)(iii): and
- comply, for a period not exceeding 2 years, with other orders the court thinks fit to specify (if any): s 20(1)(a)(iv).
For further detail on these conditions, see 3.2-3.7 above.
Particular conditions apply to offenders sentenced for child exploitation offences: see 4.6 Recognizance release orders for offences involving child exploitation.
4.4 Condition of recognizance release order can extend beyond head sentence
The clear legislative intent demonstrated by the plain words of s 20(1) and by the sentencing scheme imposed under the Act is to allow a sentencing court to impose a term of imprisonment for a federal offence but to suspend it, wholly or partially, upon the offender giving security by recognizance under s 20(1)(a), including the giving of security by recognizance to be of good behaviour for a period not exceeding five years under s 20(1)(a)(i). There is nothing in the Act that prohibits a judge from imposing a good behaviour bond under an order pursuant to s 20(1)(a)(i) and (2) which extends beyond the period of imprisonment imposed under that order.12
4.5 Explanation of order to offender
(2) Where a court imposes a federal sentence on a person and makes a recognizance release order in respect of that sentence, it must explain or cause to be explained to the person, in language likely to be readily understood by the person, the purpose and consequences of making the recognizance release order including, in particular, an explanation:
(a) that service of the sentence will entail a period of imprisonment equal to the pre-release period (if any) specified in the order and a period of service in the community equal to the balance of the sentence; and
(b) of the conditions to which the order is subject; and
(c) of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions; and
(d) that any recognizance given in accordance with the order may be discharged or varied under section 20AA.
4.6 Recognizance release orders for offences involving child exploitation
Section 20(1)(b)(ii) and 20(1)(b)(iii) provide that an offender sentenced for a “Commonwealth child sex offence” can only be released immediately on a recognizance release order under s 20(1)(b) if there are “exceptional circumstances”.
The special provisions applying in respect of Commonwealth child sex offences were introduced by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth). This form of s 20(1)(b) applies in relation to recognizance release orders made on or after 23 June 2020, in relation to an offence committed on or after 23 June 2020.13
Section 20(1)(b) does not specify the circumstances that might constitute “exceptional circumstances”. Prior to the introduction of s 20(1)(b)(ii) and (iii) in July 2020, some courts had taken the view that unless exceptional circumstances existed, a sentence involving an immediate term of imprisonment would ordinarily be warranted for offences involving child pornography: see R v De Leeuw  NSWCCA 183, ; cf DPP v Garside  VSCA 74, -. The case law on what constitutes “exceptional circumstances” in the context of child exploitation offences priorr to the introduction of the new provision is likely to continue to be relevant to s 20(1)(b)(ii) and (iii).
For example, Judge Berman made a finding of exceptional circumstances in the child exploitation case of DPP v Guerrero (a pseudonym)  VCC 1790 (in circumstances where the new s 20(1)(b) did not apply). His Honour stated at  that:
This is one of those perhaps rare cases where an exception will be made to the usual rule that a sentence involving an immediate term of imprisonment is warranted for offences involving child pornography. I have decided to suspend your sentence of imprisonment for the following reasons:
– Your offending can at least in part be explained by your unfortunate early life,
– You were an immature young man at the time of your offending,
– The fact that, at around the time you were offending, your parents noticed a change in you sufficient to seek psychological help for you, suggests that you were acting out of character,
– You did not realise the harm that offences such as these caused until it was explained to you after your arrest,
– Although you kept it once you got it, there is no evidence that you sought out pornography involving pre-pubescent children,
– A large part of the child pornography covered by the four offences was images of Ms Brown, a person who was not harmed in the production of the material and who was close to the age when intimate images of her would not fit the legal description of ‘child pornography’,
– You are of otherwise good character, have expressed your genuine remorse and have good prospects of rehabilitation,
– Your physical and mental wellbeing would be at risk from incarceration, and
– A harm of a sentence of immediate imprisonment should only be imposed if I am satisfied that no other sentence is appropriate in all the circumstances of the case.
If there are no exceptional circumstances, the offender can only be released on a recognizance release order after serving a period of imprisonment: s 20(1)(b)(ii) .
The term “Commonwealth child sex offence” is defined in s 3 of the Crimes Act:
“Commonwealth child sex offence” means:
(a) an offence against any of the following provisions of the Criminal Code :
(i) Division 272 (Child sex offences outside Australia);
(ii) Division 273 (Offences involving child abuse material outside Australia);
(iia) Division 273A (Possession of child-like sex dolls etc.);
(iii) Subdivisions B and C of Division 471 (which create offences relating to use of postal or similar services in connection with child abuse material and sexual activity involving children);
(iv) Subdivisions D and F of Division 474 (which create offences relating to use of telecommunications in connection with child abuse material, sexual activity involving children and harm to children); or
(b) an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence described in paragraph (a) of this definition; or
(c) an offence against a provision described in paragraph (a) of this definition that is taken to have been committed because of section 11.2, 11.2A or 11.3 of the Criminal Code .
If an offender convicted of a Commonwealth child sex offence is released on a recognizance release order, s 20(1B) requires the Court to place certain conditions on release under s 20(1)(a)(iv).14
These are that the offender:
- be subject to the supervision of a probation officer; s 20(1B)(a)
- obey all reasonable directions of the probation officer; s 20(1B)(b)
- not travel interstate or overseas without the written permission of the probation officer; and s 20(1B)(c)
- undertake such treatment or rehabilitation programs that the probation officer reasonably directs. s 20(1B)(d)
5. Variation and Cancellation of Orders
After giving the required notice, the Crown, the offender, a surety or a probation officer may apply to the court to discharge or vary a recognizance made under a s 20(1) conditional release order: s 20AA(1).
Under s 20AA(3), the court may vary the order by:
- extending or reducing the duration of the recognizance; s 20AA(3)(a)
- altering the conditions of the recognizance; s 20AA(3)(b)
- by inserting additional conditions in the recognizance; s 20AA(3)(c)
- reducing liability to make reparation or restitution, or to pay compensation, costs or a pecuniary penalty; or: s 20AA(3)(d)
- altering the manner in which any reparation, restitution, compensation, costs or penalty is to be made: s 20AA(3)(e)
- See Bray CJ’s comments in the South Australian case of R v Collins (1976) 12 SASR 498, 500 cited with apparent approval in DPP (Cth) v Cole  SASC 188, .
- See Kate Warner, Sentencing in Tasmania (2nd ed, 2002), 143.
- Dimech v Watts  ACTSC 221
- Macpherson v Beath (1975) 12 SASR 174, 180.
- See A Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014) 689.
- See Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [7.50].
- Crimes Act 1914 (Cth) s 20(1)(b)(iii)
- See R v Nahlous  NSWCCA 90,  (Adamson J, Hoeben CJ at CL and Davies J agreeing); R v Foster  NSWCCA 215, ; Elliot v Harris (1976) 13 SASR 516, 527; R v P (1992) 64 A Crim R 381, 391; DPP (Cth) v Carter (1997) 91 A Crim R 222, 229.
- R v Saleh  NSWCCA 299,  citing R v Taylor  NSWCCA 442,  (Wood CJ); R v McKay  NSWSC 275,  (Whealy J); DPP v Bulfin (1998) 4 VR 114, 132.
- R v Saleh  NSWCCA 29, ,  (RS Hulme AJ, Johnson J agreeing).
- A Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014) 759.
- This interpretation has been followed in subsequent federal sentencing decisions: see Johnsson v The Queen  NSWCCA 192,  (Grove J, Beazley JA and Simpson J agreeing); Fowler v Matias  ACTSC 106, - (Gray J); R v MB  ACTSC 399,  (Murrell CJ); State of New South Wales v NW  NSWSC 415,  (Harrison J).
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), Sch 11, Item 4.
- See, eg, conditions of recognizance release orders imposed in DPP v Wilson  VCC 1530, ; R v Grover  VCC 1988, ; DPP v Stockton  VCC 1755, .