Skip to content

Welcome to the COMMONWEALTH SENTENCING DATABASE

Options without Proceeding to Conviction

The content on this page was last reviewed on 21 August 2017.

1. Overview

Where a court is satisfied that the federal offence has been proved, s 19B(1) empowers the court to either:

  • dismiss any charge without recording a conviction: s 19B(1)(c); or
  • conditionally discharge a person without recording a conviction: s 19B(1)(d).

Note: Section 19B orders specifically exclude certain offences under the Migration Act 1958
(Cth): see 233A; 233B; 233C.

Under the Crimes Act 1914 (Cth) ‘conviction only’ is not available when sentencing a federal offender. The Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) at [7.74] noted:

Federal sentencing legislation does not enable a judicial officer to convict a federal offender without making another sentencing order (that is, the court cannot impose a conviction-only sentence); nor can a judicial officer impose a sentence without convicting an offender (that is, the court cannot impose a non-conviction sentence).

2. Meaning of Conviction

Conviction is seen as a form of punishment in itself, leading to potentially significant legal and other consequences for the convicted offender. 1 The power that the court retains to dismiss an offender without recording a conviction is recognition of this. In Collector of Customs v Tallerman and Co. Pty Ltd [1975] 2 NSWLR 832 at [834], the New South Wales Court of Criminal Appeal when discussing s 19B stated:

One of the significant concomitants of a provision of this nature is that a dismissal under it entitles the party having the benefit of such dismissal to go forward without a conviction having been recorded against him… The dismissal is no mere technicality – it is a substantive dismissal. It contains no element of conviction and hence no element of sentence (emphasis added).

The meaning of ‘conviction’ was considered in Keys v West [2006] NSWSC 136 where the issue considered was whether a bench warrant issued under s 75A of the Justices Act 1902 (NSW) 2 constituted a conviction to preclude a s 19B non-conviction order being imposed. Hall J found that it was open to the sentencing judge to not impose a conviction as the bench warrant established the offender’s guilt for the offence rather than constituting a conviction in the final sense. Hall J held at [56]:

The conviction made and recorded … constituted a determination that the elements of the offence charged had been established on the basis of the evidence and that the defendant was accordingly guilty of the offence. However, the determination did not constitute a conviction in the sense of a final disposition of the proceedings (emphasis added).

2.1 Repeat Offender for Sentencing Purposes

An offender who receives the benefit of a s 19B order does not escape all legal consequences. In Cobiac v Liddy (1969) 119 CLR 257, Windeyer J found at [9] that where an offender who had previously been subject to dismissal under s 19B appeared before the court for having again committed the same offence, they were likely to be considered a repeat offender for the purposes of sentencing.

Return to Top

3. Operation of s 19B

Under s 19B(1)(b) where a federal charge is proved against an offender and the court is satisfied:

that it is:

  • inexpedient to inflict any punishment; or
  • inexpedient to inflict any punishment other than a nominal punishment; or
  • expedient to release the offender on probation,

then the court may:

  • under s 19B(1)(c) dismiss the charges in respect of which the court is satisfied; or
  • under s 19B(1)(d) discharge the person without conviction, conditional upon the person giving security to be of good behaviour for up to 3 years, the payment of restitution/compensation or costs (if any), and compliance with any other condition the court sees fit to impose.

The court must explain, or cause to be explained, any such order to the person who will be subject to it in language likely to be readily understood by the offender: s 19B(2). The order must be reduced to writing and a copy given to the person: s 19B(4).

3.1 Customary or Cultural Practice and s 19B

‘Cultural background’ was removed from the list of factors relevant to s 19B(1)(b)(i) by the Crimes Amendment (Bail and Sentencing) Act 2006 (Cth).

Furthermore, section 19B(1A) provides that a court must not take into account any form of customary or cultural practice as a reason for excusing, justifying, authorising, requiring, lessening or aggravating the seriousness of the criminal behaviour to which the offence relates.

See further: Cultural Background.

Return to Top

4. Applying s 19B

Section 19B(1)(b) involves a two stage process. Stage one is the consideration of factors under s 19B(1)(b)(i)-(iii). Stage two is the consideration of expediency under s 19B(1)(b). Spigelman CJ, Simpson J and Einfeld AJ noted this process in Commissioner of Taxation v Baffsky [2001] NSWCCA 332, at [10]:

Section 19B(1)(b) itself consists of two stages. First is the identification of a factor or factors of the character specified in subparagraphs (i), (ii) and/or (iii) of the paragraph. The second stage is the determination that, having regard to the factor or factors so identified, it “is inexpedient to inflict any punishment” or to reach the other conclusions for which the paragraph provides. 3

One purpose of the power conferred to the Court under s 19B is to assist in the rehabilitation of the offender. In Cobiac v Liddy (1969)119 CLR 257, Windeyer J, in considering a similarly worded state statutory provision, 4 stated that the factors in paragraphs (i) – (iii) need to be considered together and with regard to the offender and circumstances of the offence. His Honour noted at [13]:

One of these [factors in 19B(1)(i)-(iii)] itself, or several of them taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits … They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence (emphasis added). 5

In Uznanski v Searle (1981) 26 SASR 388, King CJ stated at 390 that:

Powers such as those created by s. 19B (1) of the Crimes Act are conferred on courts as an important part of their armoury for use in the furtherance of the ends of justice…Their purpose is to assist in rehabilitating such persons by keeping them out of prison, thereby avoiding the disruptive effects of imprisonment on an offender’s life and the undesirable associations and stigma which are the inevitable accompaniments of a term of imprisonment (emphasis added).

The powers conferred by s 19B have been considered ‘exceptional.’ In Scott v Chief Executive Office of Customs [2012] WASC 203, Hall J stated at [16]:

[s] 19B orders are exceptional in nature. They were so described in Matta v ACCC [2000] FCA 729 [3] (French J as he then was). In other cases they have been variously described as “rare” (Ulf Weller (1988) 37 A Crim R 349; McInnes v Global Imports Pty Ltd [1992] FCA 590 ; (1993) ASC 56-199), “unusual” (Kelton v Uren (1981) 27 SASR 92), “atypical” (O’Brien v MR Norton-Smith [1995] TASSC 78; (1995) 31 ATR 128; Paterson v Fenwick [1994] ACTSC 25; (1994) 115 FLR 462) or “special or singular” (Uznanski v Searle (1981) 26 SASR 388; (1981) 52 FLR 83) (emphasis added). 6

Return to Top

5. Factors for consideration under s 19B(1)(b)

Section 19B(1)(b) lists the factors for consideration by the court in exercising the discretion
to release an offender without recording a conviction. These factors go to the first stage of the two stage process. 7

The wording of s 19B(1)(b) suggests that the grounds listed in paragraphs (i), (ii) and (iii) are available in the alternative, rather than as cumulative considerations. 8

For example, Hall J noted in Guerro v Dickson [2013] WASC 246 at [35]:

It is not necessary that all three of the factors referred to in s 19B(1)(b)(i), (ii) and (iii) exist in a particular case. Evidence of any one of those factors is sufficient to raise the second stage question… (emphasis added).

In Talukder v Dunbar [2009] ACTSC 42 at [87] Refshauge J compared s 19B(1) with an equivalent territory provision. He stated that in respect of section 19B(1), the matters listed in paragraphs (i) – (iii) ‘…are the only matters to be considered in deciding whether such an order is to be made…’.

5.1 Section 19B(1)(b)(i): Character, Antecedents, Age, Health or Mental Condition

According to Lord Goddard CJ in R v Vallett [1951] 1 All ER 231, 232 the word ‘antecedents’ is as wide as it can be conceived.

Antecedents should be construed to include a broad range of factors relevant to the circumstances of the particular offender. In The Chief Executive of the Australian Customs Service v Nair [2007] SASR 183 at [21] Sulan J stated:

[T]he word antecedents includes all aspects, favourable and unfavourable, of an offender’s background and past life, including his or her personal, family, social and employment circumstances. It can include a person’s current way of life and his or her interaction with the lives and welfare of others. Any matters proximate to the offender’s character, conduct or way of life can relate to antecedents (emphasis added).

The professional status of an offender falls within the broad approach to “antecedents”. 9

The fact that the offender is subject to adverse consequences if a conviction is recorded is a relevant consideration. 10

The fact that the offender has no previous convictions is a relevant consideration, however it is not a sufficient ground in itself to not record a conviction. 11

Other factors, personal to the offender, can be relevant to the exercise of the s 19B discretion depending on the relationship of that factor to both the circumstances of the offender, and the circumstances of the offence. For example, in Cobiac v Liddy (1969) 119 CLR 257 at [11] Barwick CJ and Kitto and Owen JJ observed that:

Age in this context is a relative matter, to all the circumstances which exist or are about to exist. 12

Refshauge J found in Harrex v Fraser [2011] ACTSC 172, that the mental health issues suffered by the offender in a tax offence were not sufficient to stop the court from recording a conviction. His Honour noted at [85] that the evidence of the offender’s mental condition was unchallenged and it was ‘clear that it was not actually preventing him from attending to his affairs,’ but only ‘limiting or restrictive of his attending to his obligations.’ This was distinguished from Cummis v Duck [2009] ACTSC 20, [17], where the offender’s mental condition was found to warrant no recording of a conviction.

For further commentary on an offender’s antecedents under s 16A(2), see Antecedents.

5.2 Section 19B(1)(b)(ii): Trivial Nature of the Offence

The trivial nature of an offence is to be determined by reference to both the gravity of the offence as indicated, inter alia, by the statutory penalty range, and by the particular circumstances of the individual case before the Court. It was noted in Walden v Hensler [1987] HCA 54 at [25]:

Triviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed. It was erroneous to ascertain the triviality of the offence by reference simply to the statutory provision which prescribes the maximum penalty (emphasis added). 13

5.2.1 Definition of ‘trivial’

Usually an offence considered ‘trivial’ will be minor or technical in nature with a low degree of culpability, often committed through inadvertence or lack of intention. 14

Even though an offence may be of a serious nature, the particular circumstances of the offending may justify the exercise of the s 19B discretion. In relation to a similarly worded NSW provision, Windeyer J observed in Cobiac v Liddy (1969) 119 CLR 257 at [2]:

But recognising the offence as serious, and that a conviction of it must bring a heavy penalty upon the offender, is not to say that such an offender can never be dealt with under the Offenders Probation Act. 15

An offence that is typical, or ‘run-of-the-mill’, of the class prescribed will generally not be considered trivial. 16

An offence that is deliberate will generally not be considered trivial. In Mancini v Valledonga (1981) 28 SASR 236, Mitchell J discussed the meaning of ‘trifling’ under s 75(2) of the Justices Act 1921-1980 (SA) Mitchell J stated at [239]:

An offence is not trifling if it is a typical offence of the class proscribed. Where the breach is deliberate it can rarely be characterized as trifling (emphasis added). 17

The Justices Act uses the word ‘trifling’, considered synonymous with ‘trivial’. 18

5.2.2 Examples where offending not considered trivial

Tax offences have generally been considered by courts to not be trivial, however care must be taken to consider the specific offence/s. 19

In Nguyen v Ciolka [2015] NTSC 67, the offence of escaping immigration detention was found not to be trivial due to its effect of ‘undermining the operation of laws’ and ‘disrupting the orderly administration and management’ of immigration detention centres. 20

Four counts of obtaining financial advantage in circumstances where the offender knew or believed they were not eligible to receive such financial advantage contrary to s 135.2(1) of the Commonwealth Criminal Code was not considered trivial in Guerro v Dickson [2013] WASC 246, [36].

In CEO of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33, customs offences concerning the importation of cigarettes and raw tobacco under Part XIII of the Customs Act 1901 (Cth) were not considered trivial at [37].

In R v Moxon [2015] QCA 65, the offences were considered too serious to warrant a non-conviction order. The offender pleaded guilty to 29 counts of forging timber export certificates relating to biosecurity with the intention they would be used to dishonestly induce a third person to accept the certificate as genuine contrary to ss 143.3 and 144.1(5) of the Commonwealth Criminal Code and one count of contravening regulations relating to official marks contrary to s 14 of the Export Control Act 1982 (Cth). McMurdo P affirmed the sentencing judge’s remarks at [21] when discussing the ss 16A and 17A of the Crimes Act 1914:

[T]he offences are serious, involving an ‘arrogant disregard’ for Australia’s obligations pursuant to an international treaty to which almost every country in the world is a signatory. The making of the false documents carried the risk they would be used. That may lead to serious consequences for this country and the receiving country. Whether or not the false document is used its creation creates the risk to Australia’s reputation. The offences were part of an entrenched system of dishonesty. The offences, as committed by Moxon, Wilson and Affleck, are more serious for the involvement by them of other, more junior, employees. The need to deter others who might be minded to act as the defendants have is strong… (emphasis added).

Moxon’s co-offender, Affleck, was not discharged under s 19B(1)(d). McMurdo P noted at [25]:

[H]e was highly regarded by referees and was a good husband and father. His convictions on these offences will disqualify him from managing corporations and this will have a detrimental effect on his family. Despite the mitigating features, his Honour was not satisfied that the offences were either trivial or that there were sufficient extenuating circumstances to sentence him under s 19B(1)(d) Crimes Act by discharging him without conviction; the offences were too serious. As a senior manager he had encouraged other staff to commit the acts which constitute the company’s offence (emphasis added).

In Shillabeer v Stra [2007] SASC 274, resisting a Commonwealth public official in the performance of their duty offence contrary to s 149.1 of the Commonwealth Criminal Code and engaging in conduct which caused harm to a Commonwealth public official offence contrary to s 147.1 of the Commonwealth Criminal Code were not considered trivial offences. 21

In Sabel v The Queen [2014] NSWCCA 101, the offender was charged with two counts of accessing child exploitation material using a carriage service contrary to s 474.19(1)(a)(i) of the Commonwealth Criminal Code and two counts of possession of child exploitation material contrary to state legislation. The offender was a software developer and said he had downloaded the material for the purpose of researching methods to monitor and block the transmission of such material via the internet. The sentencing judge did not impose a conviction in accordance with s 19B for the first federal offence. On appeal, the offender submitted that, taking into account the offender’s prior good character and the fact that the sentencing judge accepted the offender had no erotic purpose in accessing or possessing the material, the other three offences should also have attracted the operation of s 19B. However Beazley P, Hidden and Fullerton JJ rejected this submission at [201]:

Both in accessing and possessing child pornography, the appellant engaged in activity known by him to be illegal. Whilst we have accepted on the appellant’s evidence the reasonable possibility that he saw a need to download the material, we do not accept that there was any necessity for him to save the material for any legitimate commercial or other purpose. Even if the appellant’s possession of the files thereafter was reckless, because there is a reasonable possibility he had forgotten they had been saved, his conduct in saving the files in the first place was criminal and serious. While that conduct is of course the specific conduct the subject of the first access offence the subject of the Crown appeal, the interaction between the accessing and possessing of the material in counts 1 and 3 is unmistakable. We consider that the appellant’s subjective circumstances and his Honour’s acceptance that the appellant had a commercial purpose in downloading the material and had not retained the files in his possession for an erotic purpose, was appropriately reflected in the good behaviour bond imposed by his Honour on count 3 (emphasis added).

Return to Top

5.3 Section 19B(1)(b)(iii): Extenuating Circumstances

Extenuating circumstances must be such as to excuse the offender’s commission of the offence. Such circumstances have been considered to reduce the offender’s moral culpability. 22

In Scott v Chief Executive Office of Customs [2012] WASC 203, Hall J stated at [20]:

[E]xtenuating circumstances in s 19B(1)(b)(iii) must be circumstances which excuse, to some appreciable degree, the commission of the offence: O’Sullivan v Wilkinson [1952] SASR 213 at 218 and O’Brien v MR Norton Smith (131). Such circumstances must contribute in some causative way to the offending conduct (emphasis added). 23

There must be a causal connection between the extenuating circumstances and the commission of the offence.

In Commissioner of Taxation v Baffsky [2001] NSWCCA 332, at [47] Spigelman CJ stated that s 19B(1)(b)(iii):

[P]ermits the court to have regard to “the extent to which the offence was committed under extenuating circumstances”. This subparagraph requires some kind of link between the circumstance said to be extenuating and the commission of the offence (emphasis added; italics in original). 24

Section 19B will usually only be invoked where the circumstances of the offending are atypical, or where the personal circumstances of the offender are unusual. 25

5.3.1 Examples of cases considered to be extenuating circumstances

In Semrad v Habiburahman [2013] NTCA 6, the offender was a Burmese refugee and a member of the Rohingyan ethnic group. The Court heard evidence of the offender’s severe discrimination and persecution including the fact that the offender had been sold into slavery for 8 months. The offender pleaded guilty to causing harm to a public official and damage to Commonwealth property. A conviction was not recorded pursuant to s 19B. On appeal, the Court of Appeal considered whether the sentencing judge had erred in finding extenuating circumstances to justify the application of s 19B. Riley CJ, Barr and Hiley JJ noted at [19 – 20]:

The evidence before the sentencing magistrate was that the respondent had been in detention since December 2009. After he had been found to be a refugee he was kept in detention for a further 19 months whilst necessary security checks were undertaken. References provided to the court by people associated with the respondent during his period of detention reveal that he suffered traumatic experiences including physically saving a person from hanging himself and assisting others who were experiencing suicidal ideation. He was anxious about his family in Burma. He was experiencing escalating distress and anguish due to his experiences in detention. The witnesses expressed the view that the actions of the respondent were out of character and that he was a gentle man.

His Honour noted that the respondent had suffered a significant deterioration in his mental function as a result of the length of his detention and his experiences in detention. Before the incident he had participated in a rooftop protest which had lasted five hours and then had his sleep interrupted by the intrusion of the Commonwealth official. He lost his temper and assaulted the victim.

The Court of Appeal found at [35] that such extenuating circumstances did exist on the facts:

It is apparent that opinions may differ as to the strength of the extenuating circumstances identified in a particular case, including this case. The judge placed significant weight upon those extenuating circumstances in determining not to record a conviction. He gave particular weight to the fact that the respondent was in a distressed and anxious state and suffering from impaired judgment at the time of the offending. Although the respondent’s conduct was unacceptable, it arose out of circumstances where the accumulation of concerns regarding his own situation and that of others over a long period of time impacted upon his thought processes leading him to act in a way which was quite out of character. In so concluding, his Honour canvassed all of the relevant considerations including the personal circumstances of the respondent and the objective features of the particular offence. In our opinion the reasons for decision identified a justifiable basis for a decision not to record a conviction… (emphasis added; footnotes omitted).

In the drug importation case of CEO of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33, McCallum J found the circumstances of the offender were extenuating. The Court’s discretion to not impose a conviction under s 19B was exercised as a result of the offender’s antecedents and extenuating circumstances. 26 Her Honour noted at [38]:

As to the circumstances under which the offences were committed, Mr Gollan submitted, as I have accepted, that the offender’s moral culpability may be assessed as being low. In my view, the circumstances considered above do serve to extenuate the offences. Having played no part in planning the importation, Ronnie Karam was placed in an extremely difficult position by his brothers and Mr Cheikho. It must not be overlooked that his failure to react appropriately to the information he received from them amounted to a serious criminal offence and cannot be dismissed as mere poor judgment. However, the simple fact is that, as one who became caught up in the undertaking rather than being one of those who planned and implemented it, and paying due regard to the natural pull of fraternal care, his conduct can readily be seen as being of significantly lesser seriousness than many of the other decided cases in this field (emphasis added).

Extenuating circumstances were found where an indigenous offender, running a business for the first time, failed to lodge tax returns due to miscommunication with her bookkeeper in Perkins v Commissioner of Taxation [2006] NTSC 66.

5.4 Issues of Expediency

The consideration of expediency goes to the second stage of the two stage process. 27 Under s 19B(1)(b)  the court may discharge an offender or dismiss a person where any factor listed in paragraphs (i)-(iii) exists to such an extent as to make it:

  • inexpedient to inflict any punishment; or
  • inexpedient to inflict any punishment other than a nominal punishment; or
  • expedient to release the offender on probation

Whether it is inexpedient to inflict punishment on an offender will depend upon ‘the whole of the circumstances of the offender and the offence’. 28

Expediency follows its ordinary grammatical meaning of ‘advantageous’, ‘desirable’, ‘suitable
to the circumstances of the case’. 29

In discussing the issue of inexpediency in Cobiac v Liddy [1969] HCA 26 at [13], Windeyer J stated:

The magistrate must be of the opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions…. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence (emphasis added). 30

In deciding whether to exercise the discretion under s 19B(1) the court must have regard to the gravity of the offence as indicated by legislative policy and the penalty range for the offence. This is particularly relevant for strict liability offences. For example, in O’Brien v Norton- Smith (Mr) Pty Ltd (1995) 83 A Crim R 41, [44], Wright J stated:

The existence of only one of the factors provided for in s 19B(1)(b) may be sufficient to justify the court in concluding that any form of punishment would be inexpedient, but in my opinion, one would normally expect substantial reasons to exist before reaching such a conclusion in the case of offences of strict liability (emphasis added).

In regards to the determination of ‘inexpediency’ in the second stage of s 19B, other relevant matters include those listed in s 16A(2). In Commissioner of Taxation v Baffsky [2001] NSWCCA 332  at [15] Spigelman CJ explained:

Section 16A(1) extends between “determining the sentence to be passed” to encompass “the order made”. Section 19B provides for an order. That s 16A encompasses such an order is confirmed by the express reference to s 19B(1) in s 16A(3). The scope of considerations relevant to the exercise of the power in s 19B(1) encompasses each of the matters identified in s 16A(2) (emphasis added).

See also Rehabilitation, Deterrence and Guilty Plea.

Return to Top

6. Section 19B and Deterrence

In some circumstances, need for general deterrence has been considered to override the factors in s 19B thus not permitting the court to discharge the offender without recording a conviction.

In Commissioner of Taxation v Baffsky [2001] NSWCCA 332, the Court discussed the importance of general deterrence in the application of s 19B(1). The Court noted at [95]:

In Lanham v Brake (1983) 34 SASR 578 at 585, Cox J was concerned with the application of s19B(1) in the context of offences of bringing fruit into Australia contrary to the Quarantine Act 1908 (Cth) and the making of a false statement to a Customs Officer, in this respect. His Honour referred to the seriousness of the offence and said at 584:

“This is an area, in my view in which considerations of deterrence must predominate” (emphasis added).

In the social security fraud case of Guerro v Dickson [2013] WASC 246, Hall J noted at [45] that while the offender’s personal circumstances and need for rehabilitation may have warranted consideration of a s 19B discharge, they did not overcome the seriousness of the offence or the need for general deterrence:

The magistrate appears to have taken the view that the rehabilitation of the respondent was best served by recording no conviction. He was influenced by the fact that the respondent had pleaded guilty and obtained full time employment. He may also have been influenced by suggestions that a conviction could adversely affect her in the future, though those submissions were vague and unsupported by any evidence. The personal factors were relevant but they could not justify a s 19B discharge in the circumstances of this case. Those factors did not overcome the seriousness of the offences and the importance of general deterrence (emphasis added).

In CEO of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33, the Court noted the importance of general deterrence, but found it was still expedient to not impose a conviction. The Court held at [51 – 52]:

I am bound by the decision in Baffsky. Although the Court there rejected any requirement for an offender to establish exceptional circumstances before receiving the benefit of the exercise of the discretion under s 19B, the Court observed that this should not cast any doubt on the importance of general deterrence, including giving consideration to the seriousness, prevalence and difficulties of detection of the kind of offence under consideration (at [77] and [92]-[98]).

Mr Gollan’s submissions have persuaded me that, having regard to Ronnie Karam’s character, antecedents and age and the extenuating circumstances under which the offences were committed as considered above, it is open to me to exercise my discretion under s 19B to discharge him without proceeding to conviction upon his entering into a recognizance in accordance with that section. Further, having regard to the considerations discussed above in the context of s 16A and notwithstanding the importance of general deterrence, I am satisfied that it is expedient to take that course (emphasis added).

In Nguyen v Ciolka [2015] NTSC 67, where the offender escaped immigration detention, the court took into account the offender’s mitigating factors, but found that, among other considerations, the need for general deterrence required the conviction to be recorded. 31

In Hollis v Rogers [2016] ACTSC 56, the offender was charged with having a positive alcohol reading prior to flying a commercial aircraft contrary to sub-regulation 99.375(1) of the Civil Aviation Safety Regulations 1998 (Cth). The sentencing judge found that it was not appropriate to discharge the offender under s 19B because of the serious nature of the offence and the need for general deterrence for offences of this nature. The offender was resentenced to a recorded conviction and fined $2,000. Burns J noted in the appeal judgment at [46 – 47]:

The Magistrate noted the prior good character of the appellant, but thought there was little else before her supporting the application of s 19B. She referred to the serious potential ramifications of flying an aircraft while under the influence of alcohol, before saying:

There is a real issue of general deterrence though, because if other member of the aviation industry were to form a view that the courts did not consider it a serious matter … then that would be a matter of grave concern. It has to be clear that it is considered a serious matter and the court in the ordinary course will impose a conviction in relation to such matters (emphasis added).

Return to Top

7. Section 19B(1)(d): Order and Recognizance

s 19B(1)(d) conditional release is the only option available to the court, other than outright dismissal of the charges, where a conviction is not recorded.

Under s 19B(1)(d) the court may exercise its discretion to discharge the person in respect of any charge or charges against the offender without proceeding to conviction upon the person entering into a recognizance.

Before imposing a bond without conviction on an offender under s 19B(1)(d) the court must be satisfied by one of the factors in paragraphs (i)-(iii) and be satisfied that it is inexpedient to inflict any punishment/any punishment other than a nominal punishment on the offender, or that it is expedient to release the offender on probation: see above.

Under s 19B(1)(d) the court may order that the offender, upon giving security with or without sureties, be discharged without conviction contingent on compliance with conditions to:

  • be of good behaviour for a period not exceeding 3 years: s 19B(1)(d)(i),
  • make reparation or restitution, or pay compensation or costs: s 19B(1)(d)(ii),
  • comply, for a period not exceeding 2 years, with other conditions as the court thinks fit to specify: s 19B(1)(d)(iii).

There is no legislative option for a court to impose a fine or pecuniary penalty on an offender against whom a non-conviction order is recorded. 32

An offender must enter into a conditional release order voluntarily. 33

Accordingly, before making a conditional release order under s 19B(1)(d) 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 19B(2) and s 20(2).

The court must also cause the order to be reduced to writing as soon as practicable: s 19B(4).

7.1 Good behaviour

The time limit for the condition of good behaviour under s 19B(1)(d) is three years.

The condition of ‘good behaviour’ applies to the conduct of the offender beyond the state or territory in which they were sentenced. In R v Collins (1976) 12 SASR 498 at [501] Bray CJ held:

I see no reason at all to construe the words “to be of good behaviour” in s 4 of the Offenders Probation Act [NSW], wherever they appear, in any limited territorial sense. Neither the language nor the purpose of the section seems to me to require any such limitation.

7.2 Other Conditions

The court can impose any condition it thinks fit to specify as a condition of a bond:  s 19B. Any conditions, other than the condition to be of good behaviour, cannot exceed 2 years: s 19B(1)(d)(iii).

Whilst the Crimes Act 1914 (Cth) does not expressly limit the discretion of the court in imposing bond conditions under either s 19B or s 20, the power to impose conditions has been found to be broad but not unlimited.

In R v Bugmy [2004] NSWCCA 258 at [61], Kirby J outlined the limitations on bond conditions:

First, the discretion as to conditions that may be attached to a bond is broad but not unlimited. The conditions must reasonably relate to the purpose of imposing a bond, that is the punishment of a particular crime. They must therefore relate either to the character of that crime or the purposes of punishment for that crime, including deterrence and rehabilitation.

Secondly, the conditions must each be certain, defining with reasonable precision conduct which is proscribed.

Thirdly, the conditions should not in their operation be unduly harsh or unreasonable or needlessly onerous (emphasis added). 34

In Williams v Marsh (1985) 38 SASR 313 at [316] the court confirmed that the discretion of the court to impose conditions ‘as it thinks fit’ is limited and that conditions must have some connection to the offence for which they are imposed:

It will never be proper to impose conditions that will operate harshly or unreasonably,
or which may fairly be thought to be merely intrusive or officious. Certainly they will need to be directly related to the offence which led to their imposition. 35

Orders under s 19B(1)(d) do not extend to the imposition of a community service order. 36

In DPP (Cth) v Ede [2014] NSWCA 282, the court found the sentencing judge had no power to impose a community service order as such a condition under s 20AB may only be imposed after a conviction is recorded. Gleeson JA (Basten JA and Tobias AJA agreeing) noted at [34 – 35]:

Section 20AB provides no basis for imposing a community service order on any person who has not been convicted: s 20AB(1). Section 19B(1)(d) permits the Court to “discharge the person, without proceeding to conviction”. It is clear the two sections operate in different circumstances; nor is there any provision of Commonwealth law which could operate inconsistently with this legislative scheme. The scheme is consistent with the general law principle that a person who has not been convicted on an offence should not be punished by a court: R v Ingrassia (1997) 41 NSWLR 447 at 449G-450A (Gleeson CJ; McInerney and Ireland JJ agreeing); Commissioner of Taxation v Doudle [2005] SASC 442(2005) 195 FLR 76 at 83 (Debelle J). Both these cases concerned the imposition of a fine in combination with a conditional discharge. In each case it was held that the Court had no power to require the offender to pay a fine as a condition of discharging the offender on a recognisance because the relevant legislative provision did not permit the combination of a conditional discharge and punishment in the form of a fine.

As a matter of statutory construction, and whether or not a community service order is a form of punishment, the power of the court to impose a condition on an offender who is discharged without conviction should not be read as extending to the imposition of a community service order which, pursuant to s 20AB, can only be imposed on a person after he or she is convicted. That conclusion is supported by the fact that both under State law (which provides for the imposition of a community service order) and under the common law, a community service order would constitute a form of punishment which is not available absent a conviction (emphasis added). 37

See further: Conditional Release Orders After Conviction.

7.3 Invalid Conditions

A court must not impose a condition that is incompatible with the provisions of other statutes, nor inconsistent with public policy. 38 In R v Theodossio [2000] 1 Qd R 299 when discussing whether a condition should be invalidated for a contravention of public policy, the Court stated at [303]:

[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.

Bond conditions must be reasonable; they must not be illegal, impossible to fulfil or beyond the power of the court to impose. 39

Conditions that are too uncertain to be enforced are oppressive, and therefore, invalid. 40

Bray CJ, in Macpherson v Beath (1975) 12 SASR 174 at [180] – [181] and Neil v Steel (1973) 5 SASR 67, [69], challenged the validity of unusual conditions that were paternalistic and intruded into the defendant’s private life. 41

7.4 Determining the Security

Where a bond is set, the bond amount should generally only be forfeited in the event of a breach of a condition of release. Thus, the amount of money payable upon breach must be sufficient to ensure compliance with the terms of the order.

In determining an appropriate sum the court should take into account the offender’s means. 42

There is no available option under the Crimes Act 1914 (Cth) to impose a pecuniary penalty on an offender who is conditionally discharged under s 19B. 43

7.5 Payment of debts, compensation or restitution

The Crimes Act 1914 (Cth) clearly provides for courts to attach conditions of restitution
or reparation to conditional release orders: s 19B(1)(d)(ii).

Such a condition does not preclude a victim’s right to make a civil claim for compensation or reparation.

7.6 Breach of Conditions

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

Under s 20A(1) where the court is satisfied that a person who has been discharged in pursuance of an order made under s 19B(1) has failed to comply with a condition of the order, without reasonable cause or excuse, the court may:

The offender is not to be imprisoned for a failure to pay an amount required this section: s 19B(2A).

Court proceedings to determine breach must comply with the requirements of natural justice and criminal standards of proof. 44

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 summonsed 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: s 20A(1A).

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:  s 20A(1A).

The court may also order that any recognizance or surety shall be estreated and any other security given by or in respect of the offender shall be enforced: s 20A(7).

Under 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:

Return to Top

8. Right of Appeal

A defendant who is subject to an order made under s 19B(1) has the same rights of appeal on the ground that he or she was not guilty of the offence concerned that he or she would have had had they been convicted: s 19B(3).

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

Return to Top

9. 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 the recognizance 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 19B(1) cannot be extended beyond 3 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: s 20AA(9) and s 20AA(10).

Return to Top

10. States and Territories

Section 19B prevails over similar legislation in States and Territories.

In contrast to the provisions of the Crimes Act 1914, the sentencing options under most state and territory legislation allow the court to pass certain sentences on an offender notwithstanding the court’s decision to record a non-conviction order. See, for example, Sentencing Act 1991 (VIC) s 7(1)(e); Sentencing Act 1997 (TAS) s 7; Penalties and Sentences Act 1992 (QLD) s 29, s 34, s 43A, s 44, s 90, s 100; Sentencing Act (NT) s 7; Criminal Law (Sentencing) Act 1988 (SA) s 16, s 18, s 39.

All states and territories have provisions allowing for the court to make non-conviction orders in similar circumstances to those contained in the federal legislation. However, the legislation in some jurisdictions encompasses broader factors than those contained in s 19B. For example in Tasmania, Victoria and Queensland, the court is required to consider the offender’s economic or social well-being as well as the impact a conviction would have on the offender’s employment prospects. These factors are cumulative, in distinction to those in the Federal Act which are disjunctive. See Sentencing Act 1997 (Tas) s 9; Sentencing Act 1991 (Vic) s 8(1) and Penalties and Sentences Act 1992 (Qld) s 12(2). The factors listed in the Australian Capital Territory equivalent, Crimes (Sentencing) Act 2005 (ACT) s 17, have also been considered to encompass broader factors than the federal regime. 45

Return to Top

Notes:

  1. Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 671.
  2. Now found at Criminal Procedure Act 1986 (NSW), s 202.
  3. Applied by DPP (Cth) v Ede [2014] NSWCA 282, [27]; Nguyen v Ciolka [2015] NTSC 67, [12]; Cummis v Duck [2009] ACTSC 20, [48]; Harrex v Fraser [2011] ACTSC 172, [74]; Commissioner of Taxation v Doudle [2005] SASC 442, [13]; Perkins v Commissioner of Taxation [2006] NTSC 66, [20]; Semrad v Habiburahman [2013] NTCA 6, [13]; CEO of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33, [36 – 39]. See also state sentencing case Roseby v Harman [2014] ACTSC 125, [42 – 43] where Refshauge J discussed the approach in Baffsky together with the judgment of Windeyer J in Cobiac v Liddy (1969)119 CLR 257. The two stage test is also discussed in federal sentencing cases: The Chief Executive Officer of the Australian Customs Service v Nair [2007] SASC 183, [17]; Hamilton v Commission for Taxation (Cth) [2007] SASC 165, [8]; Elder v Shojaee [2005] SASC 285, [26]; Scott v Chief Executive Office of Customs [2012] WASC 203, [17]; Guerro v Dickson [2013] WASC 246, [32].
  4. Offenders Probation Act 1913-1963 (SA), s 4.
  5. This passage has been cited with approval by Spigelman CJ in Commissioner of Taxation v Baffsky [2001] NSWCCA 332, [22]; Moreland v Snowdon [2007] WASC 137, [37]. See also Cummis v Duck [2009] ACTSC 20, [49] citing Commissioner of Taxation v Baffsky [2001] NSWCCA 332 where s 16A should always be considered in conjunction with s 19B. See further Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 677. But note The Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) which noted at [7.26] that ‘little statutory guidance is given on the way these two sets of factors interrelate.’
  6. See also Guerro v Dickson [2013] WASC 246, [31].
  7. Commissioner of Taxation v Baffsky [2001] NSWCCA 332, [10].
  8. See Re Stubbs (1947) SR NSW 329; Cobiac v Liddy (1969) 119 CLR 257 (Windeyer J); Commissioner of Taxation v Doudle [2005] SASC 442, [13]. See also Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 674. See also the updated commentary in Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 673.
  9. See further Commissioner of Taxation v Baffsky [2001] NSWCCA 332, [35]; Commissioner of Taxation v Doudle [2005] SASC 442, [17].
  10. Commissioner of Taxation v Baffsky [2001] NSWCCA 332, [38]; R v Ingrassia (1997) 41 NSWLR 447, 449.
  11. Commissioner of Taxation v Doudle [2005] SASC 442, [15]. See also Kelton v Uren (1981) 27 SASR 92, 94.
  12. For further case law on Age see: Lanham v Brake (1983) 34 SASR 578, [589] (Cox J). See also Moss v Mulholland [1994] TASSC 159.
  13. See also Williams v May  [1908] VLR 605, [608]; Lanham v Brake (1983) SASR 578, [584]; Jones v Morely (1980) 29 SASR 57, [64]; Canterbury City Council v Saad [2001] NSWLEC 31, [21].
  14. Crafter v Schubert [1934] SASR 84, [86]; Mancini v Valledonga (1981) 28 SASR 236.
  15. See also W v Marsh (1983) 35 SASR 333 at [338].
  16. See, eg, Mancini v Valledonga (1981) 28 SASR 236, [239]; Commissioner of Taxation v Doudle [2005] SASC 442, [28]; Kelton v Uren (1981) 27 SASR 92, [93]; Harrex v Fraser [2011] ACTSC 172, [92]; Cummis v Duck [2009] ACTSC 20, [50]; Talisco Pty Ltd v Sarney (1987) 87 ATC 4343, 4346. See also Federal Commissioner of Taxation v Hagidimitriou (1985) 16 ATR 839, 842.
  17. See also Nguyen v Ciolka [2015] NTSC 67, [19] where the offence of escaping immigration detention was not impulsive but premeditated.
  18. See W v Marsh (1983) 35 SASR 333, [337]. See also Siviour-Ashmanv Police [2003] SASC 29, [25] (Doyle CJ); R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999, Oxford University Press), 576. See also the updated commentary in Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 675.
  19. Commissioner of Taxation v Baffsky [2001] NSWCCA 332, [92], [99]; Harrex v Fraser [2011] ACTSC 172, [77]; Kelton v Uren (1981) 27 SASR 92, [93]; Federal Commissioner of Taxation v Wormald International Australia Pty Ltd (1985) 81 FLR 330, 332. See also Commissioner of Taxation v Doudle [2005] SASC 442, [28].
  20. Nguyen v Ciolka [2015] NTSC 67, [19].
  21. Shillabeer v Stra [2007] SASC 274, [12].
  22. See CEO of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33, [38].
  23. See also R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999, Oxford University Press), 679. See also the updated commentary in Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 677.
  24. See also Scott v Chief Executive Office of Customs [2012] WASC 203, [20].
  25. See Hamilton v Commissioner for Taxation (Cth) [2007] SASC 165, [9]. See also Moreland v Snowdon [2007] WASC 137, [37]; Kelton v Uren (1981) 27 SASR 92, [93]. But see CEO of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33, [46] (McCallum J).
  26. CEO of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33, [52].
  27. Commissioner of Taxation v Baffsky [2001] NSWCCA 332, [10].
  28. Cobiac v Liddy [1969] HCA 26 at [13]; see also Jones v Morely (1980) 29 SASR 57, [64]-[65].
  29. See Riddle v Riddle [1952] HCA 12 at [222] where the Court discussed the meaning of ‘expedient’ under the Trustee Act 1925-1942 (NSW) s 81; cited in Re Dion Investments Pty Ltd [2014] NSWCA 367, [92]; Re Grant [2013] NSWSC 1603, [42]. Riddle was also cited in The Royal Melbourne Hospital v Equity Trustees Limited [2007] VSCA 162 at [153]-[154] where the Court discussed the meaning of ‘expedient’ under the Trustee Act 1958 (Vic); The Lutheran Laypeople’s League of Australia Inc [2016] SASC 106, [32] the Court discussed the meaning of ‘expedient’ under the Trustee Act 1936 (SA) which was considered almost identical to the Trustee Act 1925-1942 (NSW); Knowles v Attorney-General [2016] TASSC 25, [16] the Court discussed the definition of ‘inexpedient’ under the Variation of Trusts Act 1994 (TAS); Cornell v Cornell [2015] WASC 43, [44] under Trustees Act 1962 (WA) which was considered broader than the NSW counterpart.
  30. Affirmed in Harrex v Fraser [2011] ACTSC 172, [75]; Commissioner of Taxation v Doudle [2005] SASC 442, [27]; and state sentencing case, Roseby v Harman [2014] ACTSC 125, [40]. See also Jones v Morely (1981) 29 SASR 57, 63.
  31. Nguyen v Ciolka [2015] NTSC 67, [21 – 22]. See also R v Moxon [2015] QCA 65, where the court noted at [21] the importance of deterrence in offences such as the production of fake timber exports certificates relating to biosecurity.
  32. Commissioner of Taxation v Doudle [2005] SASC 442, [26] applying R v Ingrassia (1997) 41 NSWLR 447. Applied in Toscano v Magistrates’ Court of Victoria & Anor [2016] VSC 144, [10]. See also DPP (Cth) v Ede [2014] NSWCA 282, [34]; Antanackovic v The Queen [2015] VSCA 136 footnote 87.
  33. See R v Collins (1976) 12 SASR 498, 500 (Bray CJ).
  34. Applied in state sentencing case Garling v Firth [2016] NTSC 41, [33] (Hiley J). Considered in state sentencing case Byrne v Mingay [2014] ACTSC 126, [109] (Refshauge J).
  35. See also Isaacs v McKinnon (1949) 80 CLR 502.
  36. DPP (Cth) v Ede [2014] NSWCA 282, [34].
  37. Affirmed in Maxcon Constructions Pty Ltd v VADASZ (No 2) [2017] SASCFC 2, [226] (Blue J, Lovell and Hinton JJ agreeing).
  38. Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 688.
  39. See R v Keur (1973) SASR 13, [15].
  40. Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 689.
  41. Macpherson v Beath (1975) 12 SASR 174, [181] affirmed in state sentencing case Byrne v Mingay [2014] ACTSC 126, [107] (Refshauge J).
  42. See R v Central Criminal Court, ex parte Boulding 1 QB 813; Williams v Marsh (1985) 38 SASR 313, [320].
  43. Commissioner of Taxation v Doudle [2005] SASC 442, [26] applying R v Ingrassia (1997) 41 NSWLR 447. Applied in Toscano v Magistrates’ Court of Victoria & Anor [2016] VSC 144, [10]. See also DPP (Cth) v Ede [2014] NSWCA 282, [34]; Antanackovic v The Queen [2015] VSCA 136 footnote 87.
  44. See Leckie; Ex parte Felman (1977) 18 ALR 93.
  45. See, eg, Vavoulas v Austin [2014] ACTSC 282, [53] (Refshauge J); McManus v Bakes [2014] ACTSC 297, [18 – 23] (Murrell CJ).