No Conviction Recorded (Commonwealth Offences)
A conviction for an offence is a significant legal and social penalty for an offender. It can restrict a person’s opportunities in areas such as employment, housing and travel. When dealing with crimes under state and territory laws, the courts have a discretion as to whether to record a conviction. However, for Commonwealth offences, there is a strict test that must be applied under the Crimes Act 1914 to determine whether no conviction can be recorded.
Commonwealth offences are covered by federal laws and include:
- sex offences committed overseas;
- drug importation and exportation;
- people smuggling;
- human trafficking;
- fraud against federal government departments;
- aviation crimes;
- online child exploitation.
Section 19B of the Act allows a court to dismiss a charge without recording a conviction, or discharge a person without conviction but with conditions. The court must apply a two-step test to make its decision.
The first step is to 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;
- the extent (if any) to which the offence was committed under extenuating circumstances.
Antecedents has a broad meaning and includes all aspects of an offender’s background and status, including family, social and employment circumstances, and the offender’s interaction with the lives and welfare of others.
The triviality of an offence is determined by the gravity of the offence according to the statutory penalty, and the particular circumstances of the case. “Trivial” usually means the offence is minor or technical, often committed inadvertently or unintentionally.
Extenuating circumstances can excuse commission of an offence. This consideration is usually invoked only when the offending is not typical or the offender’s personal circumstances are unusual.
The second step is to consider whether 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.
Expediency has been construed in cases as “advantageous”, “desirable” and “suitable to the circumstances of the case”.
Once the court has applied the test, it can either dismiss the charge or discharge a person without conviction but on the condition that they will:
- be of good behaviour for a specified period of up to 3 years;
- make reparation or restitution, or pay compensation, or pay court costs;
- comply with any other condition imposed by the court.
Before making a conditional release order, the court must explain to the person the purpose and effect of the order, the consequences of a breach of the order, and the possibility the order can be varied or discharged.
If the person fails to comply with a court order, without a reasonable cause or excuse, the court can issue a summons directing the person to appear, or issue a warrant for the person’s arrest. The court can then revoke the order, record a conviction, sentence the person for the original offence or take no action.
If a charge is dismissed without conviction and the person is subsequently found guilty of the same offence, they will be considered a repeat offender for the purpose of sentencing, despite the fact no conviction was recorded for the first offence.
Sabel v The Queen (2014)
Software developer Sabel was charged with two counts of accessing child exploitation material using a carriage service and two counts of possessing child exploitation material. Sabel said he had downloaded the material to research ways to monitor and block the transmission of such material on the internet. Section 19B was applied for the first offence, with Sabel placed on a 2-year good behaviour order on security of $500 for the other three offences. Sabel appealed, arguing that his good character and the fact the sentencing judge had accepted Sabel had no erotic purpose for accessing and possessing the material, meant the other three charges should have attracted the application of section 19B also. The appeal was rejected, with the court stating Sabel knew that accessing and possessing child pornography was illegal, and that saving the files was criminal and serious. It further stated Sabel’s subjective circumstances and the sentencing judge’s acceptance that Sabel had downloaded and stored the material for a commercial purpose, was reflected in the good behaviour order.
Semrad v Habiburahman (2013)
Burmese refugee Habiburahman pleaded guilty to harming a public official and damaging Commonwealth property. Section 19B was applied and a conviction was not recorded due to extenuating circumstances. Those circumstances included Habiburahman experiencing severe discrimination and persecution in Burma; years spent in immigration detention where he suffered traumatic experiences and was experiencing escalating distress an anguish; and anxiety about this family in Burma. The Court of Appeal stated that although Habiburahman’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”.
For advice or representation in any legal matter, please contact Armstrong Legal.