This article was written by Aurhett Barrie - Solicitor – Sydney
As a former Judge’s Associate Aurhett has rare insight into how cases are heard and decided. This knowledge allows him to persuasively advocate for his clients’ interests, both inside and outside of a courtroom. He has spent his career practising exclusively in criminal and traffic law and has advised hundreds of clients on an extensive range of matters. He takes...
Dismissal Without Conviction (Federal Offence)
When sentencing a person for a federal offence a court may satisfy itself that the offence is proved, but dismiss the charge without recording a criminal conviction. This sentencing option is contained in section 19B(1)(c) of the Crimes Act 1914 (Cth).
Seeking a Dismissal Without Conviction
A dismissal without conviction represents a significant amount of leniency being extended by a court and will only be ordered where there are good reasons to do so.
For a court to dismiss a charge without conviction it must consider:
- the character, antecedents, age, health or mental condition of the person;
- the extent (if any) to which the offence is of a trivial nature; or
- the extent (if any) to which the offence was committed under extenuating circumstances.
It must also be of the opinion that it is unjustified to inflict any punishment or to inflict any punishment other than a nominal punishment, or that it is appropriate to release the offender on probation.
Factors such as the nature and circumstances of the offence, any injury or damage caused, contrition, co-operation with authorities are still relevant considerations.
However, a court must not take into account any form of customary law or cultural practice as a reason for excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates, or as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates.
Like with the State power, the power to dismiss a charge without conviction may be followed by an order requiring that the person enter a “good behaviour bond” (a recognizance release order under federal legislation or a conditional release order under NSW legislation).
Some examples of when a court might consider dismissing a matter without recording a conviction include:
- When a person has been charged with using a carriage service to menace, harass or cause offence, the conduct was sending a couple of text messages to an ex-girlfriend that were not particularly threatening, the offender is young and has no prior convictions
- When a corporation has been charged with making a false or misleading statement to a customs officer regarding duties owed, the corporation was reckless as to the accuracy of the statement (as opposed to intentionally deceptive), the corporation has no prior criminal history and the relevant duties have been paid in full.
- When a person has been charged with obtaining a financial advantage after receiving the Newstart allowance when ineligible, the amount involved is relatively small, the person disclosed the offence voluntarily, has repaid the money received and has no prior convictions.
Honest and Expert Advice
If you would like legal advice as to the likelihood of dismissal without conviction in your matter please call us on 1300 038 223 or email us. We have access to sentencing statistics for all offences and can tell you what proportion of people who plead guilty to your offence receive a dismissal.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.