19B Good Behaviour or Dismissal (Cth)
Under section 19B of the Crimes Act 1914 (Cth), the Court may
- pursuant to section 19B(1)(c) of the Crimes Act 1914 (Cth), dismiss the charges or
- pursuant to section 19B(1)(d) without conviction, impose a bond, either with or without a surety, by recognizance or otherwise
The Court can only take the above course if it is satisfied that one or all of the criteria in 19B(1)(b)(i) – (iii) are met and that it is satisfied that it would be 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.
Since the decision handed down by Chief Justice Spigelman in the case of Baffsky in 2001, this is now commonly known in legal circles as the two-stage test.
For sentencing in relation to Victorian offences and to understand what is a good behaviour bond under Victorian State law see here.
What is the Two Stage Test?
Step 1 the court must be satisfied that one of the following factors is made out to the requisite standard;
(i) the character, antecedents, age, health or mental condition of the person; or
(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; and
Step 2 the Court must be satisfied of the following;
- It would not be advisable 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.
In making this assessment the Court must consider the ordinary factors that arise in s16A of the Criminal Code together with considerations of general deterrence.
In a Nutshell
Whilst a person may satisfy one or all three of the factors outlined in step 1 , if they do not satisfied the magistrate or judge in relation to step 2, which involves an assessment of the considerations set out in 16A of the Crimes Act 1914, the magistrate or judge cannot exercise their discretion in favour of the defendant.
Other things to know about 19B Dismissals or Good Behaviour Bonds
19B has been considered by the superior courts on numerous occasions and the following propositions are now accepted in the case law;
- The factors identified in 19B(1)(b) are alternative concepts, not cumulative, “What weight is to be given to them or any of them, either in isolation or in combination is essentially a matter for the discretion of the tribunal considering the case”see Re Stubbs (1947) 47 SR at 340
- Good character per 19B(1)(b)(i) is enough to satisfy step 1 of the test, that is the defendant’s previous history and past record see Cobiac v Liddy (1969) 119 CLR 257
- There is no class of offence that can be considered trivial. Reference to an offence being ‘trivial in nature’ refers to the surrounding circumstances making it one of a trifling nature.
- Extenuating circumstances has been determined to mean circumstances which excuse in an appreciable degree the commission of the offence charges (Sullivan v Wilkinson [1952] SASR 213)
- The courts have determined the following scenario’s as establishing extenuating circumstances, although it should be noted each case must be decided on its merits;
(i) Loss of driver’s licence resulting in significant business hardship see Re Stubbs (1947)
(ii) Aged defendant who is charged with the responsibility of caring for an aged sibling Cobiac v Liddy (1969)
(iii)Inability to pay substantial fine – Customs v Grills (1992) 110 FLR 431
It should be noted that the provisions of 19B can apply to a corporations, see Lanham v Brambles – Ruys Pty Ltd (1984) 37 SASR 16
The bottom line in relation to 19B is this, sentencers have been imbued with significant discretion in relation to interpreting and applying the meaning of extenuating circumstances.
It also important to note that under the commonwealth sentencing scheme, it is not open to the court to impose a without conviction disposition in relation to any offence unless section 19B is enlivened. This is now particularly pertinent when one considers the application of the Spent Conviction Legislation and the potential to avoid a criminal record.
What is a ‘Security’ in relation to a Good Behaviour Bond?
“Security” refers to the pledge the person put on bond without conviction gives to the Court that they will meet the required conditions. In practice, security is usually a sum of money. If the person fails to meet the bond conditions, they forfeit the sum of money.
What is a ‘Surety’ in relation to a Good Behaviour Bond?
A “surety” is someone who agrees to pay a sum of money in the event the person put on bond doesn’t meet the conditions set.
In practice, a court almost never requires a surety for a bond.
Potential Bond Conditions
- Length of good behaviour period
- Section 19(1)(d)(i) states that the required period of good behaviour by the person may be up to 3 years, but not any longer.
Monetary conditions
- Section 19B(1)(d)(ii) states that the bond may include a condition that the person pay reparations, restitutions, or compensation, as specified by the Court. The court can rule that this occurs either before a specific date, or that it occurs in periodic instalments.
Probation
- Under section 19B(1)(d)(iii), a bond may include the condition that the person will, during a period no longer than 2 years, be supervised by a probation officer and obey all their reasonable directions.
Other bond conditions
- The court may also make other bond conditions as it sees fit in the order. These conditions must be expressed extremely clearly to prevent confusion and ambiguity.
Have you been charged with a commonwealth offence in Victoria?
- You should be aware different sentencing protocols apply. Do yourself a favour and engage criminal defence lawyers that understand the difference between the Commonwealth sentencing provisions and the State sentencing provisions. Call Dribbin & Brown Criminal Lawyers today.
