Last Updated: 8 February 2008

List of subheadings:

Conditional Release under the Crimes Act
Scope of s 20(1) Order and Recognizance
- Section 20(1)(b) Recognizance Release Order Following Sentence of Imprisonment
Form of Release Order
Conditions of Release
-Good Behaviour
-Other Conditions
---Invalid Conditions
Determining the Security
Payment of Debts, Compensation or Restitution
Breach of Conditions
---Breach of s 20(1)(a)
---Breach of s 20(1)(b)
Appeal
Variation and Cancellation of Orders

Commentary on Conditional Release Bonds After Conviction under the Crimes Act 1914 (Cth)

The Crimes Act 1914 (Cth) empowers the court to release an offender conditionally, either:

• following conviction: s 20; or
• under a non-conviction order: s 19B (see Options without Proceeding to Conviction).

A s 19B(1)(d) conditional release is the only option available to the court, other than outright dismissal of the charges, where a conviction is not recorded. Section 19B(1)(b) lists the factors the court must consider in exercising the discretion to not record a conviction: see Discharge of Offenders without Conviction.

A conditional release order under s 20 follows the recording of a conviction against the offender. Unlike s 19B, s 20 does not identify specific factors for the court to consider in ordering conditional release. However, the court must have regard to the factors set out in s 16A(2) as well as, under s 16A(3), the nature and severity of the conditions that may be imposed on, or may apply to the offender in exercising the discretion to conditionally release an offender after conviction. [1]

An offender must enter into a conditional release order voluntarily. In R v Collins Bray CJ stated:

whatever else such a recognizance is, it is a contract, in the old terminology a contract of record... [I]t is not something which can be imposed on the convicted person against his will. He always has the option of entering into it or not. It is true, of course, that if he does not enter into it a worse fate may befall him. Nevertheless the choice is his and cases are not unknown of convicted persons refusing the recognizance and accepting the alternative. [2]

Accordingly, before making a conditional release order under s 20(1) the court is required to explain to the person the purpose and effect of the order, the consequences of breach of the order and the possibility that the recognizance may be varied or discharged: Crimes Act 1914 (Cth) s 19B(2) and s 20(2).

The court must also cause the order to be reduced to writing as soon as practicable: s 20(4).

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Scope of s 20(1) Order and Recognizance

Section 20 gives the court discretion to conditionally release a convicted federal offender:

• without passing sentence: (s 20(1)(a)), or
• after passing a sentence of imprisonment: (s 20(1)(b)).

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Section 16(1) defines a recognizance release order as an order made under s 20(1)(b).

In certain circumstances the court must make a recognizance release order. Part IB Division 4 of the Crimes Act 1914 (Cth) sets out detailed provisions governing the fixing of non-parole periods and making of recognizance release orders in respect of federal sentences: see Non Parole Periods and Recognizance Release Orders.

Under s 20(1)(b) the court may sentence the person to imprisonment, but order that the person be released either immediately or after serving a specific period of imprisonment. This is conditional upon the offender giving security of the kind referred to in s 20(1)(a): see below.

Where a court makes a recognizance release order under s 20(1)(b) it shall explain, in the prescribed detail, the effect of that order to the offender: s 16F.

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Recognizance Release Orders and Suspended Sentences

The court has drawn attention to the differences between a suspended sentence and a recognizance release order: see for example DPP v Cole (2005) 91 SASR 480, [4];Edwards v Pregnell [1994] TASSC 116 , [4].

These differences mainly relate to conditions of release (see below) and to consequences of breach (see below). The ALRC report notes that:

A recognizance release order is essentially a conditional suspended sentence, and sentences of this kind are available in New South Wales, South Australia, Tasmania, the ACT and the Northern Territory [3].

Australian courts have rejected the argument that a suspended sentence in effect amounts to no punishment at all: see R v Foster [2001] NSWCCA 215, [36]; Elliot v Harris (1976) 13 SASR 516, [527]; R v P (1992) 64 A Crim R 381; R v Carter (1997) 91 A Crim R 222, [229]; R v P (1992) 111 ALR 541, [551].

When imposing a recognizance release order (otherwise referred to as a conditional suspended sentence) the court shall first determine whether there are other alternatives to full-time custody available. [4] In Dinsdale v The Queen, Kirby J, discussing suspended sentences under WA legislation, stated:

The starting point … is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment and not some lesser sentence is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the Court. The two steps should not be elided. Unless the first is taken, the second does not arise. [5]

Under s 20(1), the court is empowered to release an offender under a s 20(1)(b) order 'if it thinks fit'. This discretion is subject to the limitations in s 19AC, which apply to sentences of imprisonment of between six months and three years: see Non Parole Periods and Recognizance Release Orders.

General sentencing factors apply to the imposing of a recognizance release order by the court, particularly issues of deterrence and the prospects of offender rehabilitation. In R v Zamagias the NSW Court of Criminal Appeal stated that:

The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. [6]

Note: for further discussion of rehabilitation as a sentencing factor see Rehabilitation.

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Form of Release Order

A court ordering release under s 20(1) shall use the form contained in Schedule 3 of the Crimes Regulations 1990 (Cth): see DPP v Cole (2005) 91 SASR 480.

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Conditions of Release

Section 20(1)(a) lists four available conditions of release. These conditions apply both to orders made under s 20(1)(a) and to the conditions of a recognizance release order made under s 20(1)(b).

The court's discretion is such that only the condition that the offender be of good behaviour is mandatory. Under s 20(1)(a) the court may order that the offender, upon giving security with or without sureties:

• be of good behaviour for a period not exceeding 5 years: s 20(1)(a)(i); and
• make reparation or restitution, or pay compensation or costs (if any): s 20(1)(a)(ii); and
• pay a pecuniary penalty (if any) not exceeding an amount calculated in accordance with the conditions of s 20(5): s 20(1)(a)(iii); and
• comply, for a period not exceeding 2 years, with other orders the court thinks fit to specify (if any): s 20(1)(a)(iv)

Note: there is conflicting authority as to whether a condition of a recognizance release order can extend beyond the completion of the head sentence. For further discussion see Selimoski v Picknoll (Unreported, Supreme Court of Western Australia, Malcolm, Murray and White JJ, 6 August 1992); O'Brien (1991) 57 A Crim R 80 followed by the Court of Criminal Appeal of Victoria in R v Walsh (1993) 116 FLR 246.

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Good Behaviour

Under s 20(1)(a)(i) a convicted federal offender who is released without sentence must comply with the condition to be of good behaviour for a period not exceeding 5 years.

The requirement that an offender be of good behaviour means more than mere compliance with the law. [7]

The breach of the condition of 'good behaviour' must have some relationship to the original offence: see Devine v The Queen [1967] HCA 45, 515 (Windeyer J).

The condition of 'good behaviour' applies to the conduct of the offender beyond the State or Territory in which they were sentenced. In R v Collins Bray CJ stated:

I see no reason at all to construe the words "to be of good behaviour" in s 4 of the Offenders Probation Act [NSW], wherever they appear, in any limited territorial sense. Neither the language nor the purpose of the section seems to me to require any such limitation. [8]

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Other Conditions

The court can impose any condition it thinks fit to specify as a condition of a bond: s 20. Any conditions imposed, other than the offender be of good behaviour, cannot exceed 2 years: s 20(1)(a)(iv).

Whilst the Crimes Act 1914 (Cth) does not expressly limit the discretion of the court in imposing bond conditions under either s 19B or s 20, the power to impose conditions has been found to be broad but not unlimited.

In R v Bugmy, Kirby J outlined the limitations on bond conditions:

First, the discretion as to conditions that may be attached to a bond is broad but not unlimited. The conditions must reasonably relate to the purpose of imposing a bond, that is the punishment of a particular crime. They must therefore relate either to the character of that crime or the purposes of punishment for that crime, including deterrence and rehabilitation.

Secondly, the conditions must each be certain, defining with reasonable precision conduct which is proscribed.

Thirdly, the conditions should not in their operation be unduly harsh or unreasonable or needlessly onerous. [9] (emphasis added)

In Williams v Marsh the court confirmed that the discretion of the court to impose conditions 'as it thinks fit' is limited and that conditions must have some connection to the offence for which they are imposed:

It will never be proper to impose conditions that will operate harshly or unreasonably, or which may fairly be thought to be merely intrusive or officious. Certainly they will need to be directly related to the offence which led to their imposition. [10]

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Invalid conditions

Conditions must not be incompatible with the provisions of other statutes, nor inconsistent with public policy. [11] However, for a condition to be invalidated for contravention of public policy, the court has stated that:

the existence and content of the policy should be clear beyond argument. Public policy can often be difficult to discern or define and as a basis for judicial decision making can give rise to too great a latitude for subjectivity. [12]

Bond conditions must be reasonable; they must not be illegal, impossible to fulfil or beyond the power of the court to impose: see R v Keur (1973) SASR 13, [15].

Conditions that are too uncertain to be enforced are oppressive, and therefore, invalid. [13] Bray CJ has challenged the validity of unusual conditions that are paternalistic and intrude into the defendant's private life: see Macpherson v Beath (1975) 12 SASR 174, [181]; Neil v Steel (1973) 5 SASR 67, [69].

Whether a community service order may be imposed as a condition of a recognizance order is subject to debate between jurisdictions: see David Dowling v Leia Kahui Hamlin [2006] ACTSC 117; R v Shambayati (1999) 105 A Crim R 373; Bantick v Blunden (1981) 36 ALR 541.

To the extent that conditions held to be invalid are separate and independent, they will be severable from the recognizance and not invalidate the operation of legally imposed conditions contained therein. [14]

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Determining the Security

The bond amount will only be forfeited in the event of a breach of a condition of release. Thus, the amount of money payable upon breach must be sufficient to ensure compliance with the terms of the order. [15]

The amount required as security must be a 'just, proper and suitable sum'. Unless the sum to be imposed is a trivial amount, in the interests of natural justice a suitable sum should only be decided after investigation into the offender's means: see R v Central Criminal Court, ex parte Boulding 1 QB [813]; Williams v Marsh (1985) 38 SASR 313, [320].

The maximum pecuniary penalty that a court may fix as a condition of release under s 20(1)(a)(iii) is limited by s 20(5).

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Payment of debts, compensation or restitution

The Crimes Act 1914 (Cth) clearly provides for courts to attach conditions of restitution or reparation to conditional release orders: s 20(1)(a)(ii).

Such a condition will not affect the right of the victim to make a civil claim for compensation or reparation. [16]

No person may be imprisoned for a failure to comply with an order to pay reparation, restitution or compensation or an amount in respect of costs made under s 20(1): s 20(1)(2A).

To ensure that conditional release orders are not constructed in a way that is contrary to s 20(1)(2A), the court has recommended that, in certain circumstances, orders for reparation or compensation be made under s 21B rather than as a condition of release under s 20(1)(a): Johannessen v Lee (1992) 24 ATR 306; see Reparation Orders.

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Breach of conditions

Section 20A outlines the power of the court to deal with a person who has been discharged pursuant to an order under s 20(1) and who, without reasonable cause or excuse, fails to comply with a condition of the order.

No person may be imprisoned for a failure to comply with an order to pay reparation, restitution or compensation or an amount in respect of costs made under s 20(1): s 20(1)(2A).

Court proceedings to determine breach must comply with the requirements of natural justice and criminal standards of proof. [17] See also Leckie; Ex parte Felman (1977) 18 ALR 93.

A magistrate before whom information is laid about the failure of an offender to comply with a condition of the recognizance may order the offender to be summonsed or arrested and to be brought before the court by which the order was made, provided that the complaint is made before the expiration of the recognizance period: Crimes Act 1914 (Cth) s 20A(1).

Where the breach of a condition of the order constituted a commission by the person of an offence, the information can be laid at any time: Crimes Act 1914 (Cth) s 20A(1A).

The court may also order that any recognizance or surety be estreated and any security enforced: s 20A(7).

Under the Crimes Act 1914 (Cth) s 20A(6), in determining the action to be taken by the court against the offender for the breach of the conditional release order, the court is to take into account:

• the fact that the order was made: s 20A(6)(a);
• anything done under the order: s 20A(6)(b); and
• any other order made in respect of the offence or offences: s 20A(6)(c).

In Cornelius Stevens v Emily Mccallum, the ACT Court of Appeal has explained that sentencing following a breach of recognizance involves two discretionary decisions:

The first is whether the breach is of such gravity and consequence as to require estreatment of the recognizance and, hence, reconsideration of the original sentence. That is a process not unlike that of breach of contract. Is the breach sufficiently serious that the agreement should be regarded as ended?

The next is a consideration, in the light of the breach, of the original sentence. [18]

Sentences imposed on those who breach a condition of a recognizance order should adequately represent the seriousness with which such conduct is regarded.

The New South Wales Court of Criminal Appeal in Morris (Unreported, Court of Criminal Appeal, 14 July 1995) cited in Doyle (1996) 84 A Crim R 287, 290 stated that:

[A sentence for breach] may not, of course, exceed that sentence which is appropriate to the objective circumstances; but it should usually reflect the fact that by his rejection of the trust placed in him by the previous sentencing court, the offender will have shown a lack of remorse and cast doubt upon his prospects of rehabilitation.

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Breach of s 20(1)(a) order

Where the court is satisfied that a person who has been discharged in pursuance of an order made under s 20(1)(a) has failed to comply with a condition of the order without reasonable cause or excuse, the court may:

• impose a pecuniary penalty not exceeding 10 federal penalty units on the person while allowing the original order to stand: s 20A(5)(b)(i); or
• revoke the order and deal with the person for the offence in respect of which the order was made as though the offender was before the court for sentence in respect of the offence: s 20A(5)(b)(ii); or
• take no action: s 20A(5)(b)(iii).

Note: any pecuniary penalty imposed under s 20A(5)(b) shall be subject to the same mechanisms of enforcement as a fine imposed for an offence against the law of the Commonwealth: see Fines.

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Breach of s 20(1)(b) order

Where the court is satisfied that a person who has been discharged in pursuance of an order made under s 20(1)(b) has failed to comply with a condition of the order without reasonable cause or excuse, the court may:

• impose a monetary penalty not exceeding $1000: s 20A(5)(c)(ia); or
• amend the order so as to extend the period for which the person is required to give security to be of good behaviour, provided that the period as extended does not exceed 5 years: s 20A(5)(c)(ib); or
• revoke the order and make an order under s 20AB: s 20A(5)(c)(ic); or
• revoke the order and order that the person be imprisoned for the part of each sentence of imprisonment fixed under s 20(1)(b): s 20A(5)(c)(i); or
• take no action: s 20A(5)(c)(ii).

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Appeal

Conditional orders under s 20(1) and revised orders under s 20A following a breach are all subject to appeal: ss 19B(3), 20(3), 20A(8).

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Variation and Cancellation of Orders

After giving the required notice, the Crown, the offender, a surety or a probation officer may apply to the court to discharge or vary the recognizance order: Crimes Act 1914 (Cth) s 20AA(1).

Under s 20AA(3) the court may vary the order by:

• extending or reducing the duration of the recognizance;
• altering the conditions of the recognizance;
• reducing liability to make reparation or restitution, or to pay compensation, costs or a pecuniary penalty; or
• altering the manner in which any reparation, restitution, compensation, costs or penalty is to be made.

Note: A recognizance ordered under s 20(1) cannot be extended beyond 5 years from the date of the original order: Crimes Act 1914 (Cth) s 20AA(4).

Sureties are not bound by the altered conditions unless they are willing to undertake to be so: Crimes Act 1914 (Cth) s 20AA(9), s 20AA(10).

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Footnotes

[1] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [7.23].

[2] (1976) 12 SASR 498, [500] (Bray CJ).

[3] Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [7.50].

[4] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [7.50].

[5] (2000) 175 ALR 315.

[6] [2002] NSWCCA 17, [32].

[7] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), [7.304].

[8] (1976) 12 SASR 498, [501].

[9] [2004] NSWCCA 258, [61].

[10] (1985) 38 SASR 313, [316]; see also Isaacs v McKinnon (1949) 80 CLR 502.

[11] R v Theodossio (1998) 104 A Crim R 367, [370].

[12] R v Theodossio (1998) 104 A Crim R 367, [371]-[2]; see also Isaacs v McKinnon (1949) 80 CLR 502.

[13] Macpherson v Beath (1975) 12 SASR 174, [180].

[14] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), [7.306].

[15] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), [7.303].

[16] K Warner, Sentencing in Tasmania (2nd ed, 2002), 143.

[17] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), [7.504].

[18] [2006] ACTCA 13, [93]-[94].