Dismissal of Charges (Vic)

In Victoria, when a person is found guilty of a criminal offence, the courts have the power to dismiss the charge. A court may dismiss a charge with or without a conviction and with or without imposing conditions. This page deals with the dismissal of charges in Victoria.

Legislation

The Sentencing Act 1991 governs sentencing in Victoria. Division 1 of that Act contains the provisions relating to the different ways in which charges may be dismissed by a court. These include dismissal after a conviction is recorded, release on adjournment following conviction and unconditional dismissal.

Why would a court dismiss charges?

A court may decide to make an order that involves the dismissal of one or more charges for a range of reasons. These orders are generally made when the offending is of a low level and where there is no need for a significant punishment.

A charge may be dismissed because:

• The offence is trivial or technical
• It is not appropriate to record a conviction
• There are extenuating circumstances
• It is not appropriate to impose a punishment that is more than nominal

Dismissal without conviction

Under section 76 of the Sentencing Act 1991, a court may dismiss a charge without recording a conviction. When this occurs, the person has been found guilty of the offence but there are no further consequences for the offence.

A charge can only be dismissed without conviction where it is trifling in nature and where it would be manifestly unfair to impose a conviction. This may be because the offending was trivial of because of the effect a conviction would have on their employment.

When a person has a finding of guilt for an offence recorded without a conviction, this may be taken into account if they are sentenced for offences in the future. In other words, it will be viewed as a prior offence in spite of the fact that no conviction was recorded.   

Dismissal after conviction

Under section 73 of the Sentencing Act 1991, a court may unconditionally discharge a person for an offence. This occurs after the person has been found guilty and a conviction has been recorded. The person is then discharged without any conditions.

A person may be unconditionally discharged for an offence because:

• The offence involves a low level of culpability
• The offence is minor and is subsumed into a more serious offence
• There are compelling personal circumstances that make unconditional discharge appropriate

Release on adjournment without conviction

Under section 75 of the Sentencing Act 1991, a court may release a person on an adjourned undertaking without recording a conviction. When this happens, the matter is adjourned for a period of up to 60 months upon the offender entering an undertaking to be of good behaviour and to attend court if called up on to do so. The court may also impose other conditions.

If an offender who is sentenced to an adjourned undertaking without conviction abides by the conditions, the court must dismiss the charge.

A court may impose an adjourned undertaking because:

• The nature of the offence makes it appropriate
• The offender’s character and history make it appropriate

However, these factors must be balanced with the need for general deterrence.

Release on adjournment after conviction

Under section 72 of the Sentencing Act 1991, a court may release a person on an adjourned undertaking for a period of up to five years after recording a conviction. When this happens, the person is released on condition that they be of good behaviour and attend court if called upon to do so. The court may also impose other conditions including that the offender must make a payment to a charitable or community organisation or that the offender must take part in a justice plan for up to two years.

If an offender who is sentenced to an adjourned undertaking after conviction abides by the conditions, the court must dismiss the charge.

When imposing this order, the court must have regard to:

• The nature of the offence
• The person’s character and history
• The impact of a conviction on their economic and social wellbeing including their employment prospects.

These factors must be balanced with the need for general deterrence.

Special conditions

The additional conditions that a court may impose as part of an adjourned undertaking (with or without conviction) are not specified in the Act. However, examples of conditions that the court may impose are firearm prohibitions, non-contact conditions, the completion of specified programs such as drug education programs or driver education programs, or that the offender have psychiatric treatment.

Compensation or restitution

A person who is discharged unconditionally (either with or without a conviction) may also be ordered to pay restitution or compensation. However, this requirement will be imposed as a separate order and not as a condition of their discharge.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.