14 / 4 / 2023

Non-Conviction Orders in the ACT (section 17)

If you have had any experience or interest in the criminal justice system, it is likely that you will have heard of ‘non-conviction’ orders. In the ACT these are referred to as ‘section 17’s’ as they are governed by section 17 of the Crimes (Sentencing) Act 2005. In NSW there is a similar provision for non-conviction orders found at section 10 of the Crimes (Sentencing Procedure) Act 1999.

What is a section 17 Non-Conviction Order?

If you have been found guilty at hearing or trial, or have pleaded guilty to an offence, the Court will need to impose a sentence on you. The Crimes (Sentencing) Act 2005 provides the court with a variety of sentencing options ranging from full-time imprisonment, to fines. A section 17 non-conviction order is one such sentencing option that the Court may impose.

For almost all sentencing options the Court will record a conviction against you. This means that not only has the Court found the offence proved (meaning that the Court found that you committed the offence, either because you pleaded guilty or were found guilty after a hearing/trial) but it also records a formal conviction that will appear on your criminal record. A section 17 is a sentencing option that allows the Court, whilst finding the offence proved, to not to impose this criminal conviction.

When can a section 17 be granted?

The granting of a section 17 is a discretionary power of the Court. This means that the Court may decide to impose a section 17, but it does not have to. The factors which must be considered when considering the granting of a section 17 are contained at section 17(3)-(4) and include:

  • the offender’s character, antecedents, age, health and mental condition;
  • the seriousness of the offence;
  • any extenuating circumstances in which the offence was committed;
  • anything else the court considers relevant.

There have been a number of cases in the ACT which discuss when it is appropriate for the Court to use its discretion to grant a non-conviction order. Some key cases on this area are: Proud v Sladic [2014] ACTCA 26;  ZL v Corey [2020] ACTSC 143; Bennett v Daley [2021] ACTSC 159; Kinnane v Beattie [2022] ACTSC 265.

The starting position for non-conviction orders was articulated in the ACT Court of Appeal decision of Proud v Sladic where the Court held that section 17 confers on the Court a “very broad discretion” (see [28]). The Court of Appeal head that whilst a non-conviction order is an “exceptional outcome”, it was not necessary for the defendant to identify an “exceptional consideration”, rather, the Court was to have regard to the “whole of the relevant circumstances” in determining whether a section 17 was appropriate (see [42]-[46]).

The notion of a section 17 being an “exceptional” outcome was re-iterated in Bennett v Daley where Justice Burns held that the imposition of a section 17 “falls outside of the ordinary”, that it is “deviation from the ordinary consequences of criminal offending” and that “there must be good reason for adopting such a course”. But Justice Burns also re-iterated that it was not necessary for a defendant to show “exceptional circumstances” in order for a section 17 to be granted.

What can be gleaned from these decisions is that one should not expect or feel entitled to a section 17 but it can be given in some cases. The Court considers the imposition of a non-conviction order to be a departure from the normal consequences of criminal offending and will thus only use its discretion to not-record a conviction if it is convinced that it is appropriate to do so.

Factors which are conducive to the granting of a section 17 include:

  • the offence being of low objective seriousness;
  • a lack of criminal history;
  • extenuating/mitigating circumstances surrounding the offence;
  • negative impacts of the recording of a conviction;
  • whether physical/mental health contributed to the offending reducing one’s moral culpability;
  • steps one has taken since the offence to ensure it never happens again;
  • material that shows an offender is of otherwise good character.

Generally, in order to be sentenced to a section 17, it is necessary to have many of the above factors in combination.

Section 17 and Traffic Offences

There has been some argument in the ACT Magistrates Court recently regarding how the impacts of a loss of licence are to be taken into account as part of the section 17 criteria for traffic offences such as drink and drug driving. Bennett v Daley Justice Burnes commented that “the recording of a conviction may have the mandatory consequence of loss of a driver’s licence, which in turn may result in the offender losing their employment. That, however, is the expected consequence of that type of offending” (see[54]). This has led some to argue that the negative impacts of a loss of licence are not relevant to whether a section17 should be imposed.

Justice Burns did however also note: “In order to justify the imposition of a non-conviction order because of the effects of the recording of a conviction upon the offender or their family, there must be evidence that those consequences fall outside the range of consequences that will ordinarily be expected.”

Rather than the decision saying that the impacts of a loss of a licence are irrelevant to a section 17, the decision appears to be reenforcing is that fact that it is not enough simply to submit that one will lose their licence if a conviction is recorded and that this is sufficient basis for a section 17. A defendant will need to convince the Court that when having regard to the whole of the circumstances, including the impacts of a loss of licence, a non-conviction order is an appropriate outcome. In this it will be important to have material proof of the extent and impacts that a loss of licence will have (potentially allowing an argument that the impacts of a loss of licence in this case are cogent and compelling reasons for a non-conviction order), as well as evidence of the other circumstances.  Indeed, Justice Mossop in the decision of Kinnane v Beattie upheld the sentencing Magistrate’s decision to impose a non-conviction order for a drug driving matter where he did consider the impact of a loss of licence as well as a number of other factors.

What are the benefits to being sentenced to a section 17?

If the Court does decide to sentence you to a section 17, it means that whilst the Court has found you guilty of an offence, it has not recorded a conviction against you. It is also important to note that when sentencing you to a section 17, the Court may also sentence you to a good behaviour order for a certain period of time or impose a fine.

The decision of a court not to record a conviction is beneficial in a number of different ways. Firstly, it means that on your criminal record there is no recording of a conviction for the offence. This can be important in circumstances where the recording of a conviction is detrimental to you (e.g. certain jobs, security checks, visas etc.) That being said, the Court will still record the fact that you were guilty of an offence, and this fact may nevertheless have certain impacts on you (e.g. in relation to obtaining a firearms licence). Non-conviction orders may also still show up on higher level security clearance checks.

Non-conviction orders are particularly beneficial if you have been charged with traffic offences where you may lose your driver’s license. For most of these offences (e.g. drink driving), the imposition of a licence disqualification is only activated if a conviction is recorded. This means that if you receive a section 17 at sentence there will be no licence disqualification.

Jack Johnson, Lawyer