Conviction with no other penalty

[5-300] Terms and scope

Section 10A Crimes (Sentencing Procedure) Act 1999 provides:

(1)

A court that convicts an offender may dispose of the proceedings without imposing any other penalty.

(2)

Any such action is taken, for the purposes of the Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender.

Section 10A was inserted by the Crimes and Courts Legislation Amendment Act 2006, which commenced on 29 November 2006 (GG No 175 of 8 December 2006, p 10,385).

Section 10A, according to the explanatory note to the Bill, has been added for circumstances where a court considers a s 10 bond is inappropriate because an offence is not trivial and it is inconvenient to impose any further penalty.

Laura Wells, Crown Prosecutor and Director of the Criminal Law Review Division of the Attorney General’s Department, in “Crimes and Courts Legislation Amendment Act 2006” (2006) 18(11) JOB 91, provided the following rationale for the amendment, the circumstances in which the penalty could be used and its relationship with automatic statutory periods of licence disqualification:

The use of the new option may be appropriate where the offence is not trivial enough to be dismissed under s 10 of the Crimes (Sentencing Procedure) Act or where it is inconvenient to impose any further penalty. An example would be when an offender has been sentenced to imprisonment for one or more principal offences, and other minor charges carrying a maximum penalty of a fine are dealt with at the same time.

The commonly-imposed penalty of “imprisonment until the rising of the court” has not been abolished, and remains available in appropriate cases. However, as the penalty is a term of imprisonment (albeit a short one) it must only be imposed in those matters where, having considered all available alternatives, no penalty other than imprisonment is appropriate [s 5(1) Crimes (Sentencing Procedure) Act].

It should be noted that making an order under the new s 10A does not operate to defeat automatic statutory periods of licence disqualification that are imposed upon conviction for certain driving offences.

In the second reading speech for the amending Act, Mr Neville Newell (on behalf of the Attorney General), said that s 10A was introduced to address an anomaly in relation to fines:

This option addresses an anomaly in the sentencing regime to overcome situations where inappropriate sentences have been imposed such as fines of 50¢. Imposing very small nominal fines costs the courts, and State Debt Recovery Office, more to administer and recover, than the value of the fine; and where the offender is already serving a sentence of imprisonment, the fine is rarely recovered in any event. This amendment will address such cases.

[Hansard, 27 October 2006]