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Section 20A outlines the power of the court to deal with a person who has been discharged pursuant to an order under s 20(1) and who, without reasonable cause or excuse, fails to comply with a condition of the order.
Court proceedings to determine breach must comply with the requirements of natural justice and criminal standards of proof. 1 See also Leckie; Ex parte Felman (1977) 18 ALR 93.
A magistrate before whom information is laid about the failure of an offender to comply with a condition of the recognizance may order the offender to be summoned or arrested and to be brought before the court by which the order was made, provided that the complaint is made before the expiration of the recognizance period: Crimes Act 1914 (Cth) s 20A(1).
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 Cornelius Stevens v Emily Mccallum, the ACT Court of Appeal has explained 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 requires 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. 2
Sentences imposed on those who breach a condition of a recognizance order should adequately represent the seriousness with which such conduct is regarded.
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.
2. Breach of s 20(1)(a) order
Where the court is satisfied that a person who has been discharged 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.
Where the court is satisfied that a person who has been discharged 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).