Commonwealth Numbered Acts

CRIMES AMENDMENT ACT 1982 NO. 67 OF 1982 - SECT 8

8. (1) Sections 19B, 20 and 20A of the Principal Act are repealed and the
following sections are substituted: Discharge of offenders without proceeding
to conviction

''19B. (1) Where-

   (a)  a person is charged before a court with an offence against the law of
        the Commonwealth; and

   (b)  the court is satisfied that the charge is proved, but is of the
        opinion, having regard to-

        (i)    the character, antecedents, age, health or mental condition of
               the person;

        (ii)   the extent (if any) to which the offence is of a trivial
               nature; or

        (iii)  the extent (if any) to which the offence was committed under
               extenuating circumstances,

that it is inexpedient to inflict any punishment, or to inflict any punishment
other than a nominal punishment, or that it is expedient to release the
offender on probation,
the court may, by order-

   (c)  dismiss the charge; or

   (d)  discharge the person, without proceeding to conviction, upon his
        giving security, with or without sureties, by recognizance or
        otherwise, to the satisfaction of the court, that he will comply with
        the following conditions:

        (i)    that he will be of good behaviour for such period, not
               exceeding 3 years, as the court specifies in the order;

        (ii)   that he will make such reparation or restitution, or pay such
               compensation, in respect of the offence (if any), or pay such
               costs in respect of his prosecution for the offence (if any),
               as the court specifies in the order (being reparation,
               restitution, compensation or costs that the court is empowered
               to require the person to make or pay)-

                (A)  on or before a date specified in the order; or

                (B)  in the case of reparation or restitution by way of money
                     payment or in the case of the payment of compensation or
                     an amount of costs-by specified instalments as provided
                     in the order; and

        (iii)  that he will, during the period specified in the order in
               accordance with sub-paragraph (i), comply with such other
               conditions (if any) as the court thinks fit to specify in the
               order, which conditions may include the condition that the
               person will, during the period so specified, be subject to the
               supervision of a probation officer appointed in accordance with
               the order and obey all reasonable directions of a probation
               officer so appointed.

''(2) Where a court proposes to discharge a person in pursuance of an order
made under sub-section (1), it shall, before making the order, explain or
cause to be explained to the person, in language likely to be readily
understood by him-

   (a)  the purpose and effect of the proposed order;

   (b)  the consequences that may follow if he fails, without reasonable cause
        or excuse, to comply with the conditions of the proposed order; and

   (c)  that any recognizance given in accordance with the order may be
        discharged or varied under section 20AA.

''(3) Where a charge against a person is dismissed, or a person is discharged,
in pursuance of an order made under sub-section (1)-

   (a)  the person shall have such rights of appeal on the ground that he was
        not guilty of the offence with which he was charged as he would have
        had if the court had convicted him of the offence; and

   (b)  there shall be such rights of appeal in respect of the manner in which
        the person is dealt with for the offence as there would have been if-

        (i)    the court had, immediately before so dealing with him,
               convicted him of the offence; and

        (ii)   the manner in which he is dealt with had been a sentence passed
               upon that conviction.

''(4) Where a person is discharged in pursuance of an order made under
sub-section (1), the court shall, as soon as practicable, cause the order to
be reduced to writing and a copy of the order to be given to, or served on,
the person. Conditional release of offenders after conviction

''20. (1) Where a person is convicted of an offence against the law of the
Commonwealth, the court before which he is convicted may, if it thinks fit-

   (a)  by order, release the person, without passing sentence on him, upon
        his giving security, with or without sureties, by recognizance or
        otherwise, to the satisfaction of the court, that he will comply with
        the following conditions:

        (i)    that he will be of good behaviour for such period, not
               exceeding 5 years, as the court specifies in the order;

        (ii)   that he will make such reparation or restitution, or pay such
               compensation, in respect of the offence (if any), or pay such
               costs in respect of his prosecution for the offence (if any),
               as the court specifies in the order (being reparation,
               restitution, compensation or costs that the court is empowered
               to require the person to make or pay)-

                (A)  on or before a date specified in the order; or

                (B)  in the case of reparation or restitution by way of money
                     payment or in the case of the payment of compensation or
                     an amount of costs-by specified instalments as provided
                     in the order;

        (iii)  that he will pay to the Commonwealth such pecuniary penalty (if
               any) as the court specifies in the order (being a penalty not
               exceeding the maximum amount of the penalty that, in accordance
               with sub-section (5), the court may specify in respect of the
               offence) on or before a date specified in the order or by
               specified instalments as provided in the order; and

        (iv)   that he will, during the period specified in the order in
               accordance with sub-paragraph (i), comply with such other
               conditions (if any) as the court thinks fit to specify in the
               order, which conditions may include the condition that the
               person will, during the period so specified, be subject to the
               supervision of a probation officer appointed in accordance with
               the order and obey all reasonable directions of a probation
               officer so appointed; or

   (b)  sentence the person to a term of imprisonment but direct, by order,
        that the person be released, upon his giving security of the kind
        referred to in paragraph (a), either forthwith or after he has served
        a specified part of the term of imprisonment.

''(2) Where a court proposes to release a person, or direct that a person be
released, in pursuance of an order made under sub-section (1), it shall,
before making the order, explain or cause to be explained to the person, in
language likely to be readily understood by him-

   (a)  the purpose and effect of the proposed order;

   (b)  the consequences that may follow if he fails, without reasonable cause
        or excuse, to comply with the conditions of the proposed order; and

   (c)  that any recognizance given in accordance with the order may be
        discharged or varied under section 20AA.

''(3) Where a person is released in pursuance of an order made under
sub-section (1) without sentence being passed on him, there shall be such
rights of appeal in respect of the manner in which the person is dealt with
for the offence in respect of which the order is made as there would have been
if the manner in which he is dealt with had been a sentence passed upon his
conviction for that offence.

''(4) Where an order is made under sub-section (1) in respect of a person, the
court shall, as soon as practicable, cause the order to be reduced to writing
and a copy of the order to be given to, or served on, the person.

''(5) The maximum amount of the penalty that a court may specify in respect of
an offence in an order made under sub-section (1) in relation to a person is-

   (a)  where the offence is punishable by a fine-the amount of the maximum
        fine that the court is empowered to impose on the person for the
        offence; or

   (b)  where the offence is not punishable by a fine-

        (i)    if the court is not a court of summary jurisdiction-$10,000; or

        (ii)   if the court is a court of summary jurisdiction-$2,000.
Failure to comply with condition of discharge or release

''20A. (1) Where a person has been discharged in pursuance of an order made
under sub-section 19B (1), or released in pursuance of an order made under
sub-section 20 (1), and information is laid before a magistrate, whether
before or after the expiration of the period specified in the order in
accordance with sub-paragraph 19B (1) (d) (i) or 20 (1) (a) (i), alleging that
the person has, without reasonable cause or excuse, failed to comply with a
condition of the order, the magistrate may-

   (a)  issue a summons directing the person to appear, on a date, at a time
        and at a place fixed in the summons, before the court by which the
        order was made; or

   (b)  if the information is laid on oath and the magistrate is of the
        opinion that proceedings against the person by summons might not be
        effective-issue a warrant for the apprehension of the person.

''(2) Where-

   (a)  a person who is served with a summons issued under sub-section (1)
        fails to attend before the court as required by the summons; or

   (b)  a person who has been admitted to bail under sub-section (4) fails to
        attend before the court as required by the conditions of his bail,
the court may, on proof of the service of the summons or of the admission of
the person to bail, as the case may be, issue a warrant for the apprehension
of the person.

''(3) A warrant issued under sub-section (1) or (2) shall authorize the
apprehension of the person, the bringing of the person before the court as
soon as practicable after his apprehension and the detention of the person in
custody until he is released by order of the court or in accordance with
sub-section (4).

''(4) Where a person is apprehended in pursuance of a warrant issued under
sub-section (1) or (2) and the court before which he is to be brought is not
sitting at the time of his arrest, the person shall be brought before a
magistrate, who may-

   (a)  admit the person to bail, on such recognizance (with or without
        sureties) as the magistrate thinks fit and on the condition that the
        person appears, on such date, at such time and at such place as the
        magistrate specifies, before that court; or

   (b)  direct that the person be kept in custody in accordance with the
        warrant.

''(5) Where, in accordance with this section, a person who has been discharged
in pursuance of an order made under sub-section 19B (1), or released in
pursuance of an order made under sub-section 20 (1), appears or is brought
before the court by which the order was made, the court (whether or not
constituted by the judge or magistrate who made the order), if it is satisfied
that the person has, without reasonable cause or excuse, failed to comply with
a condition of the order, may-

   (a)  in the case of a person who has been discharged in pursuance of an
        order made under sub-section 19B (1)-

        (i)    revoke the order, convict the person of the offence in respect
               of which the order was made and, subject to sub-section (6),
               deal with the person, for that offence, in any manner in which
               he could have been dealt with for that offence if the order had
               not been made; or

        (ii)   take no action; or

   (b)  in the case of a person who has been released in pursuance of an order
        made under sub-section 20 (1)-

        (i)    without prejudice to the continuance of the order, impose a
               pecuniary penalty not exceeding $1,000 on the person;

        (ii)   revoke the order and, subject to sub-section (6), deal with the
               person, for the offence in respect of which the order was made,
               in any manner in which he could have been dealt with for that
               offence if the order had not been made and he was before the
               court for sentence in respect of the offence; or

        (iii)  take no action.

''(6) Where a person who has been discharged in pursuance of an order made
under sub-section 19B (1), or released in pursuance of an order made under
sub-section 20 (1), is dealt with under sub-section (5) for the offence in
respect of which the order was made, the court shall, in so dealing with the
person, take into account-

   (a)  the fact that the order was made;

   (b)  anything done under the order;

   (c)  any other order made in respect of the offence; and

   (d)  in the case of a person who has been released in pursuance of an order
        made under sub-section 20 (1)-any period of imprisonment served by him
        for the offence.

''(7) Where a person who has been discharged in pursuance of an order made
under sub-section 19B (1), or released in pursuance of an order made under
sub-section 20 (1), is dealt with under sub-section (5) for the offence in
respect of which the order was made, the court may, in addition to dealing
with him for that offence, order that any recognizance entered into by him, or
by a surety for him, shall be estreated and any other security given by or in
respect of him shall be enforced.

''(8) Where a person who has been discharged in pursuance of an order made
under sub-section 19B (1), or released in pursuance of an order made under
sub-section 20 (1), is dealt with under sub-section (5) for the offence in
respect of which the order was made, there shall be such rights of appeal in
respect of the manner in which the person is dealt with for that offence as
there would have been if-

   (a)  in the case of a person who has been discharged in pursuance of an
        order made under sub-section 19B (1)-the manner in which he is dealt
        with had been a sentence passed upon his conviction for the offence;
        or

   (b)  in the case of a person who has been released in pursuance of an order
        made under sub-section 20 (1)-

        (i)    the court had, immediately before so dealing with him,
               convicted him of the offence; and

        (ii)   the manner in which he is dealt with had been a sentence passed
               upon that conviction.

''(9) A pecuniary penalty imposed on a person by virtue of sub-paragraph (5)
(b) (i) shall, for the purposes of the laws of the Commonwealth, and of the
States and Territories, with respect to the enforcement and recovery of fines
ordered to be paid by offenders, be deemed to be a fine imposed on the person
upon his conviction for an offence against the law of the Commonwealth. Power
to discharge or vary conditions of recognizance

''20AA. (1) Where a person has entered into a recognizance in pursuance of an
order made under sub-section 19B (1) or 20 (1), an authorized person, the
person who entered into the recognizance, a surety for the last-mentioned
person or, where a condition of the order is that the person will be subject
to the supervision of a probation officer appointed in accordance with the
order, the probation officer so appointed, may apply to the court by which the
order was made for the discharge of the recognizance or for a variation of its
terms.

''(2) Where an application is made under sub-section (1) for the discharge of
a recognizance, the court (whether or not constituted by the judge or
magistrate who made the order in pursuance of which the recognizance was
entered into) may, if it is satisfied that notice as required by sub-section
(5) or (6) has been given and that the conduct of the person who entered into
the recognizance has been such as to make it unnecessary that he should remain
bound by the recognizance, discharge the recognizance.

''(3) Where an application is made under sub-section (1) for a variation of
the terms of a recognizance, the court (whether or not constituted by the
judge or magistrate who made the order in pursuance of which the recognizance
was entered into) may, if it is satisfied that notice as required by
sub-section (5) or (6) has been given and it thinks fit to do so, vary the
terms of the recognizance in all or any of the following ways:

   (a)  by extending or reducing the duration of the recognizance;

   (b)  by altering the conditions of the recognizance;

   (c)  by inserting additional conditions in the recognizance;

   (d)  by reducing any liability to make reparation or restitution, by
        reducing any instalment of any reparation or restitution or by
        reducing the amount of, or of any instalment of, any costs,
        compensation or penalty; or

   (e)  by altering the manner in which any reparation, restitution,
        compensation, costs or penalty, or any instalment or any reparation,
        restitution, compensation, costs or penalty, is or are to be made or
        paid.

''(4) The court shall not extend the duration of a recognizance beyond-

   (a)  in the case of a recognizance entered into in pursuance of an order
        made under sub-section 19B (1)-the period of 3 years from the date on
        which the recognizance was entered into; or

   (b)  in the case of a recognizance entered into in pursuance of an order
        made under sub-section 20 (1)-the period of 5 years from the date on
        which the recognizance was entered into.

''(5) Where an application is made under sub-section (1) by an authorized
person, the authorized person shall cause notice of the application, and of
the date, time and place fixed for the hearing of the application, to be
served on the person who entered into the recognizance in relation to which
the application is made and, if that person has a surety in respect of the
recognizance, on the surety.

''(6) Where an application is made under sub-section (1) by the person who
entered into a recognizance or by a surety for that person, the person making
the application shall cause notice of the application, and of the date, time
and place fixed for the hearing of the application, to be served on the Crown
Solicitor, or the Deputy Crown Solicitor in the State or Territory in which
the application is made, and-

   (a)  if the application is made by a surety-on the person who entered into
        the recognizance; or

   (b)  if the application is made by the person who entered into the
        recognizance and that person has a surety-on his surety.

''(7) Where notice of an application under sub-section (1) is served on a
surety, the surety is entitled to appear on the hearing of the application and
seek to be released from his liability as a surety in respect of the
recognizance.

''(8) Subject to sub-sections (9) and (10), where under this section a court
varies the terms of a recognizance, a person who is a surety in respect of the
recognizance, and is not released by the court from his liability, continues
to be liable as a surety in respect of the recognizance as so varied.

''(9) Where under this section a court varies the terms of a recognizance in
respect of which a person is a surety-

   (a)  if the recognizance is varied by extending its duration-the surety
        ceases to be liable after the expiration of the period for which he
        agreed to be liable when he became a surety;

   (b)  if the recognizance is varied by altering a condition-the surety is
        not liable in respect of non-compliance with that condition as
        altered; and

   (c)  if the recognizance is altered by the addition of a condition-the
        surety is not liable in respect of non-compliance with the additional
        condition,
unless he agrees to be liable in respect of the recognizance as so varied.

''(10) Where under this section a court varies the terms of a recognizance in
respect of which a person is a surety by altering a condition, the court shall
give directions as to the extent (if any) to which the surety is to continue
to be liable in respect of the condition as it existed before the alteration,
and the surety continues to be liable in respect of the condition to that
extent but not otherwise.

''(11) Where under this section a court varies the terms of a recognizance-

   (a)  corresponding variations shall, by force of this sub-section, be
        deemed to have been made to the conditions of the order in pursuance
        of which the recognizance was entered into; and

   (b)  section 20A applies to and in relation to the order, in respect of
        acts or things done or omitted to be done after the variation, as if
        references in that section to the conditions of the order were
        references to the conditions of the order as so deemed to be varied.

''(12) In this section, 'authorized person' means the Attorney-General or a
person appointed under section 69 of the Judiciary Act 1903 to prosecute
indictable offences against the laws of the Commonwealth. Additional
sentencing alternatives

''20AB. (1) Where under the law of a State or Territory a court is empowered
in particular cases to pass a sentence or make an order known as a community
service order, a work order, a sentence of periodic detention, an attendance
centre order, a sentence of weekend detention or an attendance order, or to
pass or make a similar sentence or order or a sentence or order that is
prescribed for the purposes of this section, in respect of a person convicted
of an offence against the law of the State or Territory, such a sentence or
order may in corresponding cases be passed or made by that court or any
federal court in respect of a person convicted before that first-mentioned
court, or before that federal court in that State or Territory, of an offence
against the law of the Commonwealth.

''(2) Where a court proposes to pass a sentence, or make an order, under
sub-section (1), it shall, before passing the sentence or making the order,
explain or cause to be explained to the person in respect of whom it is
proposed to pass the sentence or make the order, in language likely to be
readily understood by him-

   (a)  the purpose and effect of the proposed sentence or order;

   (b)  the consequences that may follow if he fails, without reasonable cause
        or excuse, to comply with the proposed sentence or order or with any
        requirements made in relation to the proposed sentence or order by or
        under the provisions of the laws of the relevant State or Territory
        that will apply in relation to the proposed sentence or order by
        virtue of sub-section (3); and

   (c)  if the proposed sentence or order may be revoked or varied under those
        provisions-that the proposed sentence or order may be so revoked or
        varied.

''(3) Where a sentence or order referred to in sub-section (1) is passed or
made under that sub-section in respect of a person convicted in a State or
Territory of an offence against the law of the Commonwealth, the provisions of
the laws of the State or Territory with respect to such a sentence or order
that is passed or made under those laws shall, so far as those provisions are
capable of application and are not inconsistent with the laws of the
Commonwealth, apply, by virtue of this sub-section, to and in relation to the
sentence or order passed or made under sub-section (1).

''(4) Where a court passes a sentence, or makes an order, under sub-section
(1) in respect of a person convicted of an offence against the law of the
Commonwealth, the court may also do all or any of the following-

   (a)  impose any fine or other pecuniary penalty that the court is empowered
        to impose on the person for the offence;

   (b)  make any order requiring the person to make reparation or restitution,
        or pay compensation, in respect of the offence that the court is
        empowered to make;

   (c)  make any other order that the court is empowered to make.

''(5) Where a court passes a sentence, or makes an order, under sub-section
(1) in respect of a person, the court shall, as soon as practicable, cause the
sentence or order to be reduced to writing and a copy of the sentence or order
to be given to, or served on, the person. Failure to comply with sentence
passed, or order made, under sub-section 20AB (1)

''20AC. (1) In this section, 'the applied provisions', in relation to a
sentence passed or an order made under sub-section 20AB (1), means the
provisions of the laws of a State or Territory that apply to and in relation
to the sentence or order by virtue of sub-section 20AB (3).

''(2) Where a sentence has been passed, or an order has been made, under
sub-section 20AB (1) in respect of a person and information is laid before a
magistrate, whether before or after the expiration of the period for which the
sentence or order is to operate or operated, alleging that the person has,
without reasonable cause or excuse, failed to comply with the sentence or
order or with any requirements made in relation to the sentence or order by or
under the applied provisions, the magistrate may-

   (a)  issue a summons directing the person to appear, on a date, at a time
        and at a place fixed in the summons, before the court by which the
        sentence was passed or the order was made; or

   (b)  if the information is laid on oath and the magistrate is of the
        opinion that proceedings against the person by summons might not be
        effective-issue a warrant for the apprehension of the person.

''(3) Where-

   (a)  a person who is served with a summons issued under sub-section (2)
        fails to attend before the court as required by the summons; or

   (b)  a person who has been admitted to bail under sub-section (5) fails to
        attend before the court as required by the condition of his bail,
the court may, on proof of the service of the summons or of the admission of
the person to bail, as the case may be, issue a warrant for the apprehension
of the person.

''(4) A warrant issued under sub-section (2) or (3) shall authorize the
apprehension of the person, the bringing of the person before the court as
soon as practicable after his apprehension and the detention of the person in
custody until he is released by order of the court or in accordance with
sub-section (5).

''(5) Where a person is apprehended in pursuance of a warrant issued under
sub-section (2) or (3) and the court before which he is to be brought is not
sitting at the time of his arrest, the person shall be brought before a
magistrate, who may-

   (a)  admit the person to bail, on such recognizance (with or without
        sureties) as the magistrate thinks fit, on the condition that the
        person appears, on such date, at such time and at such place as the
        magistrate specifies, before that court; or

   (b)  direct that the person be kept in custody in accordance with the
        warrant.

''(6) Where, in accordance with this section, a person in respect of whom a
sentence has been passed, or an order has been made, under sub-section 20AB
(1) appears or is brought before the court by which the sentence was passed or
the order was made, the court (whether or not constituted by the judge or
magistrate who passed the sentence or made the order), if it is satisfied that
the person has, without reasonable cause or excuse, failed to comply with the
sentence or order or with any requirements made in relation to the sentence or
order by or under the applied provisions, may-

   (a)  without prejudice to the continuance of the sentence or order, impose
        a pecuniary penalty not exceeding $1,000 on the person;

   (b)  revoke the sentence or order and, subject to sub-section (7), deal
        with the person, for the offence in respect of which the sentence was
        passed or the order was made, in any manner in which he could have
        been dealt with for that offence if the sentence had not been passed
        or the order had not been made and he was before the court for
        sentence in respect of the offence; or

   (c)  take no action.

''(7) Where a person in respect of whom a sentence has been passed, or an
order has been made, under sub-section 20AB (1) is dealt with under
sub-section (6) for the offence in respect of which the sentence was passed or
the order was made, the court shall, in so dealing with the person, take into
account-

   (a)  the fact that the sentence was passed or the order was made;

   (b)  anything done under the sentence or order; and

   (c)  any fine or other pecuniary penalty imposed, and any other order made,
        for or in respect of the offence.

''(8) Where a person in respect of whom a sentence has been passed, or an
order has been made, under sub-section 20AB (1) is dealt with under
sub-section (6) for the offence in respect of which the sentence was passed or
the order was made, there shall be such rights of appeal in respect of the
manner in which the person is dealt with for that offence as there would have
been if-

   (a)  the court had, immediately before so dealing with him, convicted him
        of the offence; and

   (b)  the manner in which he is dealt with had been a sentence passed upon
        that conviction.

''(9) Nothing in this section shall be taken to prevent a sentence passed, or
an order made, under sub-section 20AB (1) being revoked or varied under the
applied provisions otherwise than for a failure to comply with the sentence or
order or with any requirements made in relation to the sentence or order by or
under the applied provisions.

''(10) A pecuniary penalty imposed on a person by virtue of paragraph (6) (a)
shall, for the purposes of the laws of the Commonwealth, and of the States and
Territories, with respect to the enforcement and recovery of fines ordered to
be paid by offenders, be deemed to be a fine imposed on the person upon his
conviction for an offence agaist the law of the Commonwealth.''.

(2) Sections 19B to 20AC (inclusive) of the Principal Act as amended by
sub-section (1) apply to and in relation to a person who-

   (a)  is convicted of an offence after the commencement of this section; or

   (b)  was convicted of an offence before the commencement of this section
        but had not, before the commencement of this section, been sentenced
        for the offence.

(3) Notwithstanding the repeal of sections 19B, 20 and 20A of the Principal
Act effected by sub-section (1), the provisions of those sections of the
Principal Act continue to apply, after the commencement of this section, to
and in relation to a person who was, before the commencement of this section,
convicted of, and sentenced for, an offence as if those sections had not been
repealed.