Proven & Dismissed under Victorian Sentencing
Proven and dismissed – Section 76 of the Sentencing Act allows for the Judge or Magistrate to find the charge/s proven but dismiss the charge without any further penalty.
s76 of the Sentencing Act – Unconditional dismissal
A court, on being satisfied that a person is guilty of an offence, may (without recording a conviction) dismiss the charge.
Where a conviction is imposed, (being s73 of the Sentencing Act) this type of sentence will still result in a criminal record, however any police check will show that apart from the finding of guilt, there was no further penalty.
Where a conviction is not recorded, can result in no criminal record. It used to be the case that regardless of whether a conviction was imposed or not, that the matter would form part of your criminal record. That is no longer the case with the introduction of the Spent Conviction Legislation.
If the the matter does not relate to a ‘serious’ offence per the act, and no conviction is imposed, then the outcome will not appear on a record check. So this highlights the importance of engaging lawyers that understand this fact.
These sentencing options are rarely handed down by the Courts, and are usually reserved for low-end offending.
It used to be the case that VicRoads would view fines dealt with in this manner as being withdrawn and then would not impose the demerit points. Unfortunately that is no longer the case. A speeding fine, found to be proven and dismissed, will now still attract demerit points.
Proven & Dismissed under Commonwealth Sentencing
Dismiss Charge – s 19B
Where a person is charged before the Court with a federal offence or offences, the Court may, pursuant to section 19B(1)(c) of the Crimes Act 1914 (Cth), dismiss the charges, if it is satisfied that both stages of the two-stage test are met.
Test for Dismissing Charges
The two-stage test for dismissing charges is that, having regard to:
- Step 1:
- (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;
- Step 2:
- It would not be advisable to inflict any punishment on the person charged.
In Step 1, it is only necessary for one of the three factors to be made out, but all are looked at. If the Court is satisfied that this test is met, they may choose to dismiss the charges.
It is not an easy test to satisfy the above test and the Spent Conviction legislation does not apply to commonwealth offending, meaning that a criminal record will still ensue, so this is a relevant consideration when considering how to resolve your matter.
For more information, contact Dribbin & Brown Criminal Lawyers, the criminal law specialists.
