SENTENCING ACT ~ “Dismiss the Charge”

Below is a collection of provisions of each of the States and Territories Sentencing Acts to allow one to have a charge dismissed without recording a conviction.

 

 

Victoria

SENTENCING ACT 1991 – SECT 76

Unconditional dismissal

A court, on being satisfied that a person is guilty of an offence, may (without recording a conviction)
dismiss the charge.


 

Northern Territory

SENTENCING ACT 1995 – SECT 10

Unconditional dismissal

A court which finds a person guilty of an offence may, without recording a conviction, dismiss the charge.


 

South Australia

 

SENTENCING ACT 2017 – SECT 23

23—Discharge without penalty

(1)         If a court finds a person guilty of an offence but finds the offence so trifling that it is
inappropriate to impose a penalty, the court may—

(a)         without recording a conviction—dismiss the charge; or

(b)         on recording a conviction—discharge the defendant without penalty.

(2)         If a court finds a person guilty of an offence and—

(a)         the defendant has spent time in custody in respect of the offence; and

(b)         the court is satisfied there is good reason not to impose any further penalty on the defendant,

the court may—

(c)         without recording a conviction—dismiss the charge; or

(d)         on recording a conviction—discharge the defendant without further penalty.

(3)         A court may exercise the powers conferred by this section despite any minimum penalty fixed by an Act or statutory instrument.

 


Tasmania

SENTENCING ACT 1997 – SECT 10

Effect of finding of guilt without recording of conviction

 

(1)  Except as otherwise provided by this Act or any other enactment, a finding of guilt without the recording of a conviction is not to be taken to be a conviction for any purpose.

(2)  A finding of guilt without the recording of a conviction –

(a) does not prevent a court from making any other order that it is authorised to make by this Act or any other enactment in consequence of the finding; and

(b) has the same effect as if a conviction had been recorded for the purpose of –

(i) appeals against sentence; or

(ii) proceedings for variation or breach of sentence; or

(iii) subsequent proceedings against the offender for the same offence; or

(iv) enactments providing for the mandatory forfeiture of property on conviction; or

(v) enactments providing for any other kind of mandatory penalty on conviction, not involving disqualification for, or loss of, office or the forfeiture, or suspension, of pensions or other benefits.


New South Wales

CRIMES (SENTENCING PROCEDURE) ACT 1999 – SECT 10

Dismissal of charges and conditional discharge of offender

10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders–

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9),

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

(1A) A reference in any legislation (including this Act) to an order under this section includes, in the case of an order under subsection (1) (b), a reference to a conditional release order made under section 9 pursuant to that paragraph.

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied–

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to discharge the person under a conditional release order.

(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

(2B) Subsection (1) (c) is subject to Part 8C.

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors–

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

(4) An order under this section has the same effect as a conviction–

(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and

(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and

(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.

Note : Certain other Acts and regulations contain provisions to the effect that an order under this section made in respect of an offence is to be treated as a conviction for certain purposes of the legislation concerned. Accordingly, those provisions apply to an order under subsection (1) (b) in respect of the offence and a conditional release order made pursuant to that paragraph.

(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.


Queensland

 

PENALTIES AND SENTENCES ACT 1992 – SECT 12

Court to consider whether or not to record conviction

12 COURT TO CONSIDER WHETHER OR NOT TO RECORD CONVICTION

(1) A court may exercise a discretion to record or not record a conviction as provided by this Act.

(2) In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—

(a) the nature of the offence; and

(b) the offender’s character and age; and

(c) the impact that recording a conviction will have on the offender’s—

(i) economic or social wellbeing; or

(ii) chances of finding employment.

(3) Except as otherwise expressly provided by this or another Act—

(a) a conviction without recording the conviction is taken not to be a conviction for any purpose; and

(b) the conviction must not be entered in any records except—

(i) in the records of the court before which the offender was convicted; and

(ii) in the offender’s criminal history but only for the purposes of subsection (4) (b) .

(3A) Despite subsection (3) (b) , the conviction may be entered in a record kept by a department, a prosecuting authority or the offender’s legal representative if it is necessary for the legitimate performance of the functions of the department, prosecuting authority or legal representative.

(4) A conviction without the recording of a conviction—

(a) does not stop a court from making any other order that it may make under this or another Act because of the conviction; and

(b) has the same result as if a conviction had been recorded for the purposes of—

(i) appeals against sentence; and

(ii) proceedings for variation or contravention of sentence; and

(iii) proceedings against the offender for a subsequent offence; and

(iv) subsequent proceedings against the offender for the same offence.

(5) If the offender is convicted of a subsequent offence, the court sentencing the offender may disregard a conviction that was ordered not to be recorded but which, under subsection (3) (b) (ii) , is entered in the offender’s criminal history.

(6) If—

(a) a court—

(i) convicts an offender of an offence; and

(ii) does not record a conviction; and

(iii) makes a probation order or community service order for the offender; and

(b) the offender is subsequently dealt with by a court for the same offence in any way in which it could deal with the offender if the offender had just been convicted by or before it of the offence;

the conviction for the offence must be recorded by the second court.

(7) Despite subsection (6) , the second court is not required to record the conviction for the offence if—

(a) the offender is the subject of a community service order or probation order; and

(b) the reason the court is dealing with the offender for the same offence is because the offender has applied for a revocation of the community service order or probation order; and

(c) the offender has not breached the community service order or probation order.

 


 

Western Australia

 

SENTENCING ACT 1995 – SECT 39

39 .         Natural person, sentences for

(1)         This section applies to an offender who is a natural person.

(2)         Subject to sections 41 to 45, a court sentencing an offender may —

(a)         with or without making a spent conviction order, under Part 6 impose no sentence and order the release of the offender; or

(b)         with or without making a spent conviction order, under Part 7 impose a CRO and order the release of the offender; or

(c)         with or without making a spent conviction order, under Part 8 impose a fine and order the release of the offender (unless an order under section 58 is made); or

(ca)         with or without making a spent conviction order, under Part 8A impose a suspended fine; or

(d)         with or without making a spent conviction order, under Part 9 impose a CBO and order the release of the offender; or

(e)         under Part 10 impose an ISO and order the release of the offender; or

(f)         under Part 11 impose suspended imprisonment and order the release of the offender; or

(g)         under Part 12 impose CSI and order the release of the offender; or

(h)         under Part 13 impose a term of imprisonment.

(3)         A court must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option.

(4)         A court must not use more than one of the sentencing options in subsection (2) when sentencing an offender for an offence except where section 41 or 42 applies.

(5)         A court that under subsection (2)(a) imposes no sentence is nevertheless taken to have sentenced the offender.

(6)         A court sentencing an offender may also make a disqualification order under Part 15, and any such order is to be taken as being part of the sentence.

(7)         A court sentencing an offender may also make a reparation order under Part 16, but any such order is not to be taken as being part of the sentence.

(8)         A court sentencing an offender may also make an order under Part 17, but any such order is not to be taken as being part of the sentence.

 


Australian capitol Territory

 

CRIMES (SENTENCING) ACT 2005 – SECT 17

Non-conviction orders—general

(1)     This section applies if an offender is found guilty of an offence.

(2)     Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order ):

(a)     an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;

(b)     a good behaviour order under section 13.

Note     A good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87).

(3)     In deciding whether to make a non-conviction order for the offender, the court must consider the following:

(a)     the offender‘s character, antecedents, age, health and mental condition;

(b)     the seriousness of the offence;

(c)     any extenuating circumstances in which the offence was committed.

(4)     The court may also consider anything else the court considers relevant.

Note     An appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender‘s conviction for an offence (see Magistrates Court Act 1930

, pt 3.10).

(5)     If the court makes a non-conviction order under subsection (2) (a) for the offender, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to the offender.

Note 1     For notice of a good behaviour order under s (2) (b), see s 103.

Note 2     For a young offender who is under 18 years old, the notice and order must also be given to a parent or person with parental responsibility (see s 133J).

(6)     Failure to comply with subsection (5) does not invalidate the non-conviction order.

(7)     If the court makes a non-conviction order under subsection (2) (b), the good behaviour order must be for a term of no longer than 3 years.

(8)     This section (other than subsection (7)) is subject to section 13 and chapter 6 (Good behaviour orders).

 


 

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