Sentencing Trends No 12 — The Use of Recognizances

The Use of Recognizances

by
Ian MacKinnell
Senior Project Officer

Introduction

The purpose of this paper is to examine recognizances imposed as criminal sanctions in New South Wales. Such a project is valuable in light of the frequency with which they are used, and the paucity of information currently available about heir duration.

The nature of recognizances

The recognizance is an undertaking to be of good behaviour. The court may make other conditions, or require the lodging of a security, or require third parties to provide surety. In the event of a breach, the court may order that the security and the sureties be forfeit.

Besides the prospect of forfeit, a recognizance usually imposes the threat of being called up for re-sentencing in relation to the original offence. A court may also take in account a breach as an aggravating circumstance when sentencing for a subsequent offence. If the offender abides by the conditions for the period of the recognizance, the security will be returned and liability to re-sentencing ceases. In the penalty hierarchy, recognizances can be regarded as below community service orders and custodial sentences in degree of severity, but usually above fines and nominal penalties (ie s.556A dismissals and sentences to the rising of the court). In general terms, a recognizance offers an offender the threat of more severe punishment and the hope of avoiding it through good behaviour.

It is common for conditions to be attached to a recognizance, often to limit behaviour that has previously been associated with or led to the offence (eg a requirement not to approach certain persons or places). With some recognizances, higher courts are able to make the payment of a fine or compensation a condition. Failure to pay it is then a breach; after proof of breach, the court may re-sentence the offender, and may impose a more severe penalty such as a CSO or a short gaol term.

Recognizances may be categorised according to type. The most frequently used types are s.558 and s.556A recognizances and “common law bonds”. Others include s.554, s.432 and s.547 recognizances. The Crimes Act 1914 (Cth) also provides recognizances under ss.19B and 20 that resemble the s.556A and s.558 recognizances in the New South Wales Act. The sections differ principally in relation to the maximum or minimum term allowed.

Maximum terms of recognizances

Section 558 of the Crimes Act 1900, the most general and commonly used provision when deferring sentencing, does not set a minimum or maximum term, stating only that the recognizance shall be “for such period as the Court thinks proper”. (The lack of a maximum term for s.558 recognizances is as for the common law bond. In this paper, the two are grouped together.) The other sections differ in this regard:

• s.432 provides for a recognizance where a custodial sentence has been imposed on an offender and the offence is a mis-demeanour. The term of the recognizance must not exceed three years.
• s.554 provides for a recognizance in addition to, or in substitution for, a fine or term of imprisonment, where a matter has been dealt with in a Local Court. The term of the recognizance must not be less than twelve months or greater than three years.
• s.556A provides for a recognizance as a condition of discharging an offender without recording a conviction, where certain mitigating circumstances are found. The term must not exceed three years.
• s.547 provides for a recognizance in cir-cumstances of apprehended violence. The term may not exceed six months, or – if the defendant has used offensive or defamatory language in regard to the complainant – twelve months. (It may be noted by way of comparison that the Act provides no restriction on the period of apprehended violence orders. Nevertheless, if the period is not stated in the order then it is to remain in force for six months.)

Unlike New South Wales, the Commonwealth not only specifies a maximum term for each type of recognizance, but also the maximum period in which the offender may be subject to other conditions:

• s.20(a) of the Crimes Act 1914 (Cth) provides for a recognizance in deferral of sentencing. The term of the recognizance must not exceed five years, and the period in which the offender may be subject to other conditions must not exceed two years. The circumstances in which it may be used resemble the s.558 recognizance.
• s.19B provides for a recognizance as a condition of discharging an offender without recording a conviction, where certain mitigating circumstances are found. The term of the recognizance must not exceed three years, and the period in which the offender may be subject to other conditions must not exceed two years. The circumstances in which this provision may be used resemble the s.556A recognizance.

Sentencing Statistics

What is the normal, or typical, range of terms for those types of recognizance that have no statutory maximum? What are the more common terms found among those recognizances that do have statutory limits? Next, this paper will answer these questions, and provide demographic data of offenders by age, sex, plea type and offence type, in the Local Courts and in the higher courts.

Source and nature of the statistical data

Statistical information discussed is taken from the Judicial Commission’s Sentencing Information System (SIS) and covers from January 1990 to June 1995 – nearly the entire period since the commencement of the Sentencing Act 1989. This includes the most recent data available from the NSW Bureau of Crime Statistics and Research, which undertakes the collection and collating of court statistics.

The statistics include all cases finalised during the period except those in which a custodial sentence is to be served cumulatively upon another custodial sentence. These cases have traditionally been excluded from the SIS because the term imposed takes into account the effect of all custodial sentences on the offender. In any event, these cases are of minor importance to a study of recognizances.

The data covers principal offences only. The principal offence is the charge which incurred the most severe penalty among all charges finalised at a hearing. Where several charges of different types incurred the same penalty, the principal offence is taken to be the charge that is listed first in the statistical records. Where several charges of the same type incurred the same penalty, the principal offence is described as having multiple counts; otherwise it has one count.

Note: The distinction between one count and multiple counts is not always meaningful, as judicial officers may differ in their manner of dealing with a number of proven charges. Some will impose the same penalty on each count; others will impose a substantial penalty on one of the counts and a nominal penalty on the other counts. While the effect on the offender may be the same, these practices will result in different classifications: the principal offence in the first example would regarded as having multiple counts, and in the second example as having a single count. The type of penalty imposed can be an important factor in this decision: concurrent gaol terms are common, but multiple recognizances may create an undesirable administrative burden.

The data covers all offences finalised in the higher courts at first instance, and all major offences finalised in the Local Courts. The Local Court data omits some minor offences, typically those created by regulation with a maximum penalty a fine less than $500.

The duration of recognizances in practice

Although a statutory maximum or minimum term may be absent, in practice, more than 95% of s.558 recognizances are imposed for a period of exactly twelve, eighteen, twenty-four, or thirty-six months, and in the higher courts, also four years and five years (hereafter referred to as the four or six “standard periods”). It is most rare for any recognizance to exceed five years, and terms of four or five years are relatively uncommon in the Local Courts. It is also very rare for recognizances to be imposed for any term other than a multiple of six or twelve months (the few exceptions are usually a multiple of three months). This tendency to cluster around a few “standard periods” is more marked than is the case with gaol terms. One and two month gaol terms are quite common, and the re-quirements of the Sentencing Act 1989 also con-tribute to the imposition of “odd” gaol terms, such as sixteen months. However, within the limits set by the six “standard periods” there is some variation in terms, depending on type and jurisdiction.

s.558 Recognizances in the Local Courts

In the statistics it is possible to distinguish between s.558 recognizances with supervision and without supervision. In the Local Courts, unsupervised s.558 recognizances accounted for 44% of all recognizances, while supervised s.558 recognizances accounted for 22%.

Unsupervised s.558 in the Local Courts

Term	Cases	%
12 Months	11,895	27
18 Months	5,135	12
24 Months	16,620	38
36 Months	8,133	19
Other terms	1,814	4
TOTAL	43,597	100%

In the Local Courts, s.558 recognizances with-out supervision typically last either one or two years exactly (about 65%) and some 96% fall into one of the four “standard periods”, most commonly two years. The most common “other terms” are six months, four years, and five years (in all, 1,295 cases, or 3%). Only 18 of the 43,597 recognizances were reported exceeding five years.

Supervised s.558 in the Local Courts

Term	Cases	%
12 Months	3,354	16
18 Months	2,031	9
24 Months	8,439	39
36 Months	6,364	30
Other terms	1,276	6
TOTAL	21,464	100%

As with unsupervised s.558 recognizances im-posed in the Local Courts, the most common term for supervised s.558 recognizances was 24 months. Also, about 94% fell into the four “standard periods”. Four and five year terms were a little more common (about 2% each).

: Only 25% of supervised s.558 recognizances had terms less than 24 months, compared to 39% of unsupervised recognizances. Only 12 of the 21,464 were reported as exceeding five years.

In summary: In the Local Courts most unsu-pervised s.558 recognizances are imposed for a term of one to two years (77%), while most supervised ones are imposed for two to five years (about 73%). The most common term for either type is two years exactly (38-39%). Only 30 of the 65,061 recognizances were re-ported as exceeding five years.

s.558 Recognizances and Common Law Bonds in the Higher Courts

(All references to s.558 recognizances in this section include “common law bonds”.)

As mentioned above, sentencing statistics from the higher courts distinguish s.558 recognizances with and without supervision: unsupervised s.558 recognizances accounted for 41% of all recognizances, while supervised s.558 recognizances accounted for 53%.

Unsupervised s.558 in the Higher Courts

Term	Cases	%
12 Months	168	8
18 Months	78	4
24 Months	625	28
36 Months	1,046	48
48 Months	105	5
60 Months	143	7
Other terms	31	1
TOTAL	2,196	100%

About 99% of unsupervised s.558 recogni-zances imposed in the higher courts fell into one of the six “standard periods”, most commonly 36 months (48%) and 24 months (28%). The vast majority were for one to three years (88%). Only 8 of the 2,196 recogni-zances were reported as exceeding five years.

About 99% of supervised s.558 recognizances imposed in the higher courts fell into one of the six “standard periods”, and almost all (95%) lasted exactly two, three, four or five years. The most common term was three years (56%). Only 22 of the 2,816 cases were reported as exceeding five years (under 1%).

Supervised s.558 in the Higher Courts

Term	Cases	%
12 Months	63	2
18 Months	25	1
24 Months	516	18
36 Months	1,584	56
48 Months	266	9
60 Months	321	11
Other terms	41	1
TOTAL	2,816	100%

In summary: In the higher courts most unsu-pervised s.558 recognizances were imposed for one to three years (88%). Most supervised ones were imposed for two to five years (about 95%). The most common term for either type is three years exactly (48-56%). Only 30 of the 5,012 cases were reported as lasting more than five years (less than 1%).

s.556A Recognizances in the Local Courts

Term	Cases	%
6 Months	2,195	7
12 Months	15,938	51
18 Months	3,127	10
24 Months	7,004	23
36 Months	2,122	7
Other terms	718	2
TOTAL	31,104	100

Section 556A recognizances are widely used in the Local Courts. They account for 31% of all recognizances imposed. Unlike s.558 recognizances, a significant number of offenders were required to enter a recogni-zance for just six months (7%), and the most common term was only twelve months (51%). In general, s.556A recognizances are less se-vere than the other types created by the Act, as the conviction is not recorded (conditional upon subsequent good behaviour), which is reflected in the shorter terms.

s.556A Recognizances in the Higher Courts

In the statistical data obtained from the higher courts, s.556A recognizances are separated into supervised and unsupervised types. Overall, there were only 206 s.556A recogni-zances of either type, and 4 recognizances un-der the similar provisions of s.19B of the Crimes Act 1914 (Cth). Altogether these account for 4% of all recognizances imposed in the higher courts – in marked contrast to the 31,104 s.556A recognizances imposed in the Local Courts. Owing to the small numbers involved, s.556A and s.19B recognizances have been grouped together in the table below.

All s.556A and s.19B in the Higher Courts

Term	Cases	%
6 Months	9	4
12 Months	51	24
18 Months	13	6
24 Months	67	32
36 Months	61	29
Other terms	9	4
TOTAL	210	100

Most s.556A recognizances imposed in the higher courts are unsupervised (178, compared to 28 su-pervised). The four “standard terms” account for 92% of the recognizances, and of the remainder 9 were for six months. The most common term was 24 months (32%), and – unlike the Local Courts – terms of three years were quite common (29%, compared to only 7% in the Local Courts). While 70% of s.556A recognizances imposed in the Local Courts were less than 24 months, only 34% of the s.556A recognizances imposed in the higher courts fell within this range.

In summary: Section 556A recognizances make up 31% of recognizances in the Local Courts, but only 4% in the higher courts. In the Local Courts, two-thirds of the terms were 18 months or less, with 51% just one year. In the higher courts, most s.556A recognizances lasted for two years or more (64%), with two and three years the most common.

s.432 and s.547 Recognizances

The statistics obtained from the Local Courts do not separately identify s.432 recognizances, and no instances of their use in higher courts were reported for 1990-1995. No relevant statistics are available regarding s.547 types.

s. 554 Recognizances (Local Courts)

Term	Cases	%
12 Months	759	53
18 Months	221	15
24 Months	395	28
36 Months	58	4
Other terms	2	0
TOTAL	1,435	100

Section 554 recognizances represent a little over 2% of all recognizances imposed in the Local Courts. They are not available in the higher courts. While the Act allows a term of one to three years, virtually all s.554 recognizances are imposed for one of the four “standard” periods, and most (80%) are for one or two years.

Offender Characteristics

The profile of offenders required to enter into the various types of recognizances or common law bonds differs in a number of respects and also differs from the profile of other offenders.

Sex

Males make up 85% of offenders sentenced in the Local Courts and 91% in the higher courts. The following graphs show the proportion of male offenders for each type of sentencing option. (“Nominal/Fine” refers to penalties generally less severe than recognizances: fines, “rising of the court”, and s.556A dismissals. “CSO/PD/Gaol” covers penalties more serious than recognizances: community service orders, periodic detention and imprisonment).

In the Local Courts, “Other recognizances” had the lowest proportion of males (63%), reflect-ing in part the concentration of Commonwealth offences (eg minor Customs Act offences and Social Security offences). Section 556A recognizances also have a relatively low proportion of males (76%). In contrast, 90% of offenders sentenced to gaol terms, CSOs or periodic detention were males.

Male Offenders in the Local Courts

Male Offenders in the Higher Courts

The proportion of males sentenced in the higher courts was similar to that in the Local Courts. Commonwealth s.20 recognizances had the lowest proportion of males, especially for supervised orders (although the number of cases was small). Section 556A recognizances typically had a lower proportion of males (80%) than did s.558 recogni-zances (86%). In comparison, offenders receiving other penalties (including gaol terms) were even more likely to be males (93%).

Age Group

In keeping with the Sentencing Information System, offenders are divided in this paper into four age groups: (A) less than 21 years, (B) 21 to 30 years, (C) 31 to 40 years, and (D) over 40 years. Most offenders in group A are aged 18 to 20, and very few are under 15. Age is specified in s.556A as a relevant factor in considering a recognizance or dismissal without recording a conviction.

About 63% of offenders sentenced in the Local Courts are aged 30 years or less. How-ever, less than 45% of s.556A recognizances were imposed on offenders from this group “Other recognizances” also had a high proportion of older offenders. In general, while s.558 recognizances with supervision had a similar profile to non-recognizances outcomes, most other types of recognizances had a higher proportion of older offenders.

Age Groups in the Local Courts

As in the Local Courts, 63% of offenders sen-tenced in the higher courts are aged 30 years or less. Commonwealth s.20 recognizances differed most from this age profile, with only 24%-28% of offenders falling into this age group. Persons aged over 40 years made up between 45% and 53% of offenders with s.20 recogni-zances. Section 556A recognizances had the highest proportion of offenders aged 20 or less (30%); s.558 recognizances with super-vision also had a high proportion of offenders in this age group (27%). For other penalties, only 20% of offenders were aged 20 or less.

Age Groups in the Higher Courts

In summary: Most offenders receiving a s.556A recognizance were under 30 years in the higher courts, but over 30 years in the Local Courts.

Guilty Plea

In the Local Courts 86% of all offenders pleaded guilty. Slightly higher proportions were found among most recognizances: 92% for s.556A recognizances; 91% for supervised s.558 recognizances and for “other” recognizances; and 87% for unsupervised s.558 recognizances. The guilty plea rate for CSOs and custodial sentences was 90%. It should be noted that the “Not guilty” category includes many offenders who were fined under s.75B of theJustices Act in their absence; the non-pecuniary penalties would therefore tend to have higher than average proportions of guilty pleas.

In the higher courts, 85% of all offenders pleaded guilty. Most types of recognizances had higher rates: 93% for s.556A; about 91% for supervised s.558 and s.20 recogni-zances and com-mon law bonds; and 93% for unsu-pervised s.20 recognizances. The unsuper-vised s.558 and com-mon law bonds had a somewhat lower proportion of guilty pleas at 85%. Non-recognizance penalties had a guilty plea rate of 83%.

In summary: Recognizances are slightly more likely when the offender pleads guilty.

Counts

Multiple counts of the principal offence were more common in the Local Courts among “other” recognizances (20%), supervised s.558 (10%), and unsupervised s.558 recognizances (8%), than among s.556A recognizances (4%) or other non-custodial penalties (fines and nominal penalties – 3%). About 13% of of-fenders sentenced to custody or a CSO had more than one count of the principal offence. It should be noted that fraud and forgery of-fences by their nature often occur as multiple counts, which explains why multiple counts are so frequent among “other” (ie Common-wealth) recognizances, which include many Social Security offences and the like. Overall, 5% of all offenders in the Local Courts had multiple counts of the principal offence.

In the higher courts 15% of cases involved more than one count of the principal offence. In most types of recognizances the proportion was only marginally lower – about 13%-14%. The lowest proportion was found in unsuper-vised s.558 recognizances (12%). The Com-monwealth s.20 recognizances had a high pro-portion of multiple counts: 29% of supervised orders and 34% of unsupervised orders.

In summary: Recognizances in the Local Courts represent a more serious penalty, as most offenders receive a fine only; so offenders required to enter into recognizances are more likely to have multiple counts than the majority. In the higher courts, where ap-proximately half of offenders are sentenced to custodial terms, recognizances represent a more lenient outcome. In these jurisdictions, offenders with one count are more likely to be required to enter into a recognizance – offenders with multiple counts are more likely to be sentenced to gaol terms. In all jurisdic-tions, Commonwealth matters tend to have a high proportion of multiple counts owing to the nature of the offences. Thus, the s.20 rec-ognizances in the higher courts and “other rec-ognizances” in the Local Courts had higher than average proportions of multiple counts.

Prior Record

In the Local Courts about 56% of offenders were reported as having a prior record (these figures are somewhat approximate, because prior record information cannot be obtained from a number of major Local Courts at present). Among offenders sentenced to gaol, periodic detention or a CSO, the proportion of prior records was 82%, and for offenders who were fined, only 52%. The figures for s.554 and s.558 recognizances fell between these two: 59% (s.554); 62% (unsupervised s.558); and 78% (supervised s.558). However, only 21% of offenders with s.556A recognizances had prior records, and 28% for “other” recognizances. As section 556A indicates, the absence of a prior record is a major consideration in the imposing of a dismissal or recognizance without recording a conviction.

In higher courts, 63% of offenders had a prior record. For offenders with supervised s.558 recognizances 68% had prior records; while for unsupervised, the proportion was only 44%. For s.20 recognizances the proportions were even lower: 26% for supervised orders and 22% for unsupervised. Among s.556A recognizances the figure was just 20%.

In summary: Prior record data supports the claim that recognizances generally fall between custodial sentences or CSOs, and fines or nominal penalties. In the higher courts, most offenders entering recognizances have no prior record (except for supervised s.558 recognizances), while in the Local Courts – where the majority of offenders are only fined – the majority of offenders with recognizances had prior records. Supervised s.558 recognizances had the highest proportion of prior records (68%-78%), and s.556A rec-ognizances the lowest (20%-21%).

Conclusion

The main recognizances in use in New South Wales are the s.558 recognizance (including common law bond) and, in the Local Courts, the s.556A recognizance. Section 558 recognizances appear to be used in the sentencing hierarchy below custodial sentences and CSOs, and above fines and nominal penalties. Section 556A recognizances are clearly less severe, both in the length of the term and in the non-record-ing of a conviction.

The use of recognizances in the courts is consistent with this ranking: s.558 recognizances are used in more serious matters in the Local Courts (eg offenders with multiple counts or prior records), but in less serious matters in the higher courts (such as of-fenders with a single count and no prior record). Section 556A recognizances are often used in the Local Courts, where they account for 31% of all recognizances, but more rarely in the higher courts, where they account for 4% of recognizances imposed. Common-wealth s.19B and s.20 recognizances resemble the State s.556A and s.558 recogni-zances, but tend to have a different offender profile, owing to the types of offences falling under federal law. Female and older offenders, for example, are more common in these recognizances.

The most common terms for recognizances are twelve months, eighteen months, two years and three years. In the higher courts, terms of four and five years are also common. In the Local Courts a term of six months is not uncommon for s.556A recognizances. Very few recognizances are imposed for periods other than these “standard terms”, and virtu-ally no recognizances are imposed for periods exceeding five years. It may be concluded that, despite the lack of a statutory maximum term for s.558 recognizances, the case law and the sentencing practice of all the courts indicate a practical maximum term of five years, which would most likely be used with a supervised s.558 recognizance imposed in the higher courts.

Overall, recognizances are a traditional and widely used sentencing option, which gives the offender an incentive to avoid further criminal behaviour and allows the court to “conduct sentencing in stages”. Judicial practice clearly shows a preference for certain terms, typically no more than four “standard terms” in any one type of recognizance, and is consistent with the classification of most recognizances as a “middle of the range” penalty: more severe than fines and dismissals, but less severe than custodial sentences and their alternatives.

Disclaimer
This paper was prepared by an officer of the Judicial Commission for the information of the Commission and for the information of judicial officers. The views expressed in the report do not necessarily reflect the views of the Judicial Commission itself but only the views of the officer of the Commission who prepared this report for the Commission.

Judicial Commission of New South Wales GPO Box 3634 Sydney 2001

Level 5 Wynyard House 301 George Street Sydney 2000

Chief Executive Ernest Schmatt

Tel. (02) 9299 4421 Fax. (02) 9290 3194

ISSN 1036 4722