Crimes (Sentencing) Act 2005

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

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

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;

a good behaviour order under section 13.

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).

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

the offender’s character, antecedents, age, health and mental condition;

the seriousness of the offence;

any extenuating circumstances in which the offence was committed.

The court may also consider anything else the court considers relevant.

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).

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.

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

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).

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

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.

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