Australian courts have frequently recognised the impact of recording a conviction for a person found guilty of an offence. In some circumstances it’s acknowledgeded that recording a conviction for the offence is punishment in itself, with accompanying harsh effects on the offender’s employment prospects, ability to travel and other adverse legal consequences.
These concerns are one of the reasons for the existence of section 19B of the Crimes Act 1914 (Cth) – ‘Discharge of offenders without proceeding to conviction’. This provision in the Commonwealth legislation allows a court to find that while a Federal offence has been proved, it can dismiss any charge without recording a conviction (s 19B(1)(c)) or conditionally discharge a person without recording a conviction (s 19B(1)(d).
In Queensland, this discretion in Federal legislation is reflected (with some differences) in section 12 of the Penalties and Sentences Act 1912.
What sort of offences are captured by section 19B?
Commonwealth offences fall under the law-making responsibilities of the Australian federal government, as opposed to those covered by state legislation.
Examples of Commonwealth offences include child sex offences by Australians in foreign countries, cyber-crimes committed against Federal government departments, drug importation and exportation, people smuggling, human trafficking, terrorism, fraud against government departments such as the Australian Tax Office, Medicare or Centrelink, and threats made against government officials.
A ‘conviction only’ finding is not possible when sentencing someone for a Federal offence. A judicial officer cannot convict someone of a Federal crime without making another sentencing order, nor can they impose a sentence without convicting an offender.
How is section 19B activated?
This section of the Crimes Act sets out the circumstances when no conviction will be recorded. A two-step analysis is undertaken under s 19B(1)(b), where a Federal charge is proved against an offender and the court is satisfied:
- having regard to the character, antecedents, age, health or mental condition of the person; or
- the trivial nature of the offence; or
- the extenuating circumstances under which the offence was committed, 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.
Depending on the assessment of the factors above the court may then:
- dismiss the charges in respect of which the court is satisfied (s 19B(1)(c)); or
- discharge the person without conviction, conditional upon the person giving security to be of good behaviour for up to three years, the payment of restitution/compensation or costs (if any), and compliance with any other condition the court sees fit to impose (s 19B(1)(d)).
Additionally, the court must explain any such order under s 19B to the person who will be subject to it in language likely to be readily understood by the offender.
This section in operation
The factors listed in s 19B(1)(b) do not all need to be present in order for the court to move to the second stage of the two-step process.
The use of the discretion to not record a conviction under s 19B has been judicially described as ‘exceptional, ‘rare’ and ‘special’.
Cases in which the provision has featured emphasise that the matter involved must be distinguished from a typical breach. In some cases the importance for general deterrence will override the application of s 19B, such as a case involving dishonesty by a public official.
While one of the purposes of the discretion in s 19B is to assist in the rehabilitation of the offender (see King CJ in Uznanski v Searle (1981) 26 SASR 388), good prospects of rehabilitation do not necessarily mean the provision is activated. The use of s 19B will be exceptional in cases involving fraudulent or deliberately deceptive conduct, such as one example where the offence was using a telecommunications service to menace another person.
Under s 19B(1)(d)(ii), a condition of an order made under s 19B bond may be that an offender make reparation or restitution, or pay compensation or costs, on or before a specified date, or by specified instalments. Under s 19B(1)(d)(iii), a s 19B order may also include a condition that the person is subject to the supervision of a probation officer and must obey all reasonable directions given by that officer,. One criticism of this provision has been that there does not appear to be any statutory mechanisms or administrative arrangements for these functions to be performed by state or territory probation officers.
Contact us for guidance
Hannay Lawyers is a firm of expert criminal lawyers Brisbane & Gold Coast with broad experience in representing people facing either Federal or state charges.
Our award-winning team can help you navigate the complexity of the criminal justice system. Ideally, depending on the nature of your matter, we can help you achieve a ‘no conviction’ result on the basis addressed in this article.