The least severe sentence available for Commonwealth offences is dismissal of the charge under section 19B(1)(c) of the Crimes Act 1914 (Cth) (the Act). A court may dismiss the charge if it is satisfied that the criteria in a two-stage test set out in s 19B(1)(c) is made out.
The Two-stage Test
The two-stage test for whether it is suitable for a court to dismiss a charge is in s 19B of the Act. According to this section, a court may dismiss the charge in circumstances where:
The court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
i. the character, antecedents, age, health or mental condition of the person;
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;
that it is 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;
Stage One
To satisfy the first stage, the court must be satisfied that one or more of the factors listed in subsections (i), (ii) and (iii) is / are made out.
Stage Two
To satisfy the second stage, the court must be satisfied that “it is inexpedient to inflict any punishment…”
For dismissing the charge, whether it is expedient to inflict a nominal punishment or release the offender on probation is not a relevant consideration. These are relevant considerations for another sentence in the Commonwealth sentencing hierarchy, that of a bond without conviction [hyperlink ‘bond without conviction’ to relevant sentencing page].
A charge cannot be dismissed under s 19B of the Act subject to conditions.[1]
[1] R v Matijevic [1997] FCA 992
