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Conditional Release Orders After Conviction

The content on this page was last reviewed on 5 September 2016.

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Breach of Conditional Release Orders after Conviction

1. Overview

The Crimes Act 1914 (Cth) empowers the court to release an offender conditionally, either:

  • under a non-conviction order: s 19B;  or
  • following conviction: s 20.

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 3 of the Crimes Regulations 1990 (Cth).

An order made under s 20(1)(b) is a recognizance release order:  s 16(1).

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).

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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).

The court must also have regard under s 16A(3) to the nature and severity of the conditions that may be imposed on, or may apply to the offender under the order: see further Application of s 16A(3). 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.

Breach of the condition to be of ‘good behaviour’ must have some relationship to the original offence: see Devine v The Queen [1967] HCA 35, [8] (Windeyer J).

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. 3

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(2A).

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 further Reparation Orders.

3.4 Pay the commonwealth a pecuniary penalty

Under s 20(1)(a)(iii)  the court may order that the offender, upon giving security with or without sureties, pay the Commonwealth a pecuniary penalty (if any) not exceeding an amount calculated in accordance with the conditions of s 20(5).

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 under s 4AA of the Crimes Act 1914 (Cth) means $180.

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 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): Dimech v Watts [2016] ACTSC 221. In Dimech v Watts [2016] ACTSC 221, Elkaim J held that community service could not be validly imposed as a condition of a recognizance release order, stating at [16]:

[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.

For general case law on unduly harsh or unreasonable conditions see R v Bugmy [2004] NSWCCA 258, [61]; Williams v Marsh (1985) 38 SASR 313.

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. 4 In a case considering a condition in contravention of public policy, the Queensland Court of Appeal stated:

[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. 5

Conditions must be reasonable; they must not be illegal, impossible to fulfil or beyond the power of the court to impose. 6

Conditions that are too uncertain to be enforced are oppressive, and therefore, invalid. 7

For example, in Macpherson v Beath (1975) 12 SASR 174, Bray CJ 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.’ 8

Bray CJ stated at 180:

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. 9

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4. Recognizance Release Order following sentence of imprisonment: s 20(1)(b)

An order made under s 20(1)(b) is a recognizance release order:  s 16(1). A recognizance release order is essentially a ‘conditional suspended sentence’. 10

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. 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. 11

The relevant sentencing process was summarised by Buss JA ( McLure P and Mazza JA agreeing) in De Hollander v The Queen [2012] WASCA 127, at [86]:

… 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. 12 In Hili v The Queen [2010] HCA 45French 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 [2010] QCA 10, [45] at [40]:

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”.

The court must also have regard under s 16A(3) to the nature and severity of the conditions that may be imposed on, or may apply to the offender under the order: see further Application of s 16A(3).

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. 13 In R v Nahlous [2013] NSWCCA 90,  Adamson J (Hoeben CJ at CL and Davies J agreeing) stated at [86]:

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 [2002] NSWCCA 17 at [31]. 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.”

R v Nahlous [2013] NSWCCA 90 was applied in Zaky v The Queen [2015] NSWCCA 161, [31] (Hamill J, Johnson and Davies JJ agreeing).

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 [2003] SASC 324, Perry J noted at [99]-[105]:

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 [2015] 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’. 14 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. 15

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. 16 For example, in R v Philpot [2015] 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 [63]:

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.

See further Rehabilitation.

4.3 Imposing conditions under recognizance release orders

The four conditions which can apply to orders made under s 20(1)(a) (outlined above) can also apply to orders made under section s 20(1)(b).

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.

4.4 Condition of recognizance release order can extend beyond head sentence

A condition of a recognizance release order can extend beyond the completion of the head sentence. In R v Smith [2004] QCA 417, McCurdo P stated at [6]:

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.

This interpretation has been followed in subsequent federal sentencing decisions: see Johnsson v The Queen [2007] NSWCCA 192, [30] (Grove J, Beazley JA and Simpson J agreeing); Fowler v Matias [2006] ACTSC 106, [12]-[16] (Gray J); R v MB [2014] ACTSC 399, [32] (Murrell CJ).

4.5 Explanation of order to offender

Where a court makes a recognizance release order under s 20(1)(b), it is required under s 16F(2) to explain to the person the purpose and effect of the order, including, in particular:

Section 16F(2)

(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.

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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;
  • altering the conditions of the recognizance;
  • reducing liability to make reparation or restitution, or to pay compensation, costs or a pecuniary penalty; or
  • altering the manner in which any reparation, restitution, compensation, costs or penalty is to be made.

A recognizance ordered under s 20(1) cannot be extended beyond 5 years from the date of the original order: s 20AA(4).

Sureties are not bound by the altered conditions unless they are willing to undertake to be so: ss 20AA(9),  20AA(10).

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Notes:

  1. 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 [2005] SASC 188, [16].
  2.  See also Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006) [7.23]. 
  3.  See Kate Warner, Sentencing in Tasmania (2nd ed, 2002), 143.
  4.  R v Theodossio and Said [1998] QCA 421, [10].
  5.  R v Theodossio and Said [1998] QCA 421, [16]. See also Isaacs v McKinnon (1949) 80 CLR 502. 
  6.  R v Keur (1973) 7 SASR 13, 15.
  7.  Macpherson v Beath (1975) 12 SASR 174, 180.
  8.  Macpherson v Beath (1975) 12 SASR 174, 180.
  9.  See A Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014) 689.
  10.  See Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [7.50].
  11.  See Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [7.50].
  12.  De Hollander v The Queen [2012] WASCA 127, [86] (Buss JA, McLure P and Mazza JA agreeing).
  13.  See R v Nahlous [2013] NSWCCA 90, [86] (Adamson J, Hoeben CJ at CL and Davies J agreeing); R v Foster [2001] NSWCCA 215, [36]; 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.
  14.  R v Saleh [2015] NSWCCA 299, [42] citing R v Taylor [2000] NSWCCA 442, [49] (Wood CJ); R v McKay [2007] NSWSC 275, [73] (Whealy J); DPP v Bulfin (1998) 4 VR 114, 132.
  15.  R v Saleh [2015] NSWCCA 29, [46], [59] (RS Hulme AJ, Johnson J agreeing).
  16.  A Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014) 759.