Suspended Sentences and police checks

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Australian National Character Check (ANCC) makes every effort to provide updated and accurate information to its customers. However due to the continuously changing nature of legislations for the Commonwealth and various States and Territories, it is inevitable that some information may not be up to date. The information on the website is general information only. The contents on the website do not constitute legal or professional advice and should not be relied upon as a substitute for legal or professional advice. While we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, suitability, accuracy or availability with respect to the information.

If the court finds a person guilty of the offence they are charged for, it will order at least the minimum penalty stipulated for that offence. However, for offences where the laws are unclear or have ambiguous conditions, the court can use its discretion in its verdict.

One of the many ways the court is discretionary in sentencing is when it issues a suspended sentence to an offender.

What is a Suspended Sentence of Imprisonment?

The court can issue a suspended sentence to an offender under Section 12 of the Crimes Act 1914 (Cth) instead of their original imprisonment term. If they complete a good behaviour bond. The suspended sentence is also known as a Section 12 Good Behaviour Bond.

However, the court will impose certain conditions that the offender must satisfy before approving the suspended sentences.

Are all offences eligible for the suspended sentencing?

Not all offences are eligible under the Act for the Section 12 Good Behaviour Bond. The biggest influencing factor for a section 12 Good Behaviour Bond is when it is for first-time offenders. Also, the Act stipulates that it may only be available for offences where the sentence of imprisonment is less than 2 years.

Do suspended Sentences show up on a police check?

The suspended sentence is only a suspension or alternative sentencing for offences the court finds you guilty of. Therefore, it will be recorded in your criminal history and disclosed on your police check result.

About police check Records

Police checks are becoming the staple requirements for various purposes in Australia. It is a nationally coordinated criminal history check of the person's interactions and history with the Australian judicial system. It discloses the list of all court convictions, records, pending charges, and imprisonment terms issued by a court.

Some examples are;

• Sexual offences
• Assault and Affray cases
• Breach of Good Behaviour bonds or Intervention Orders
• Convictions against corporate bodies
• Pending Charges
• Serious traffic offences that culminate in a conviction

How a Suspended Sentence may help your criminal history check certificate

Police checks have become documents of assessments for most employment in Australia. It means you can be denied some roles (upheld by the Acts) if you were sentenced to prison.

However, the employer or organization may still consider you for the role if your offence is swapped for a suspended sentence. It means your offence was not considered “serious” under the Act.

Can you get a Travel Visa while on a suspended sentence?

Depending on some factors, you may be able to travel/not outside the State/Territory where the court issued your suspended sentence.

These conditions are;

Where the court stipulates a condition in your Good Behaviour Bond that;

• Prevents you from leaving the area, or
• Would be impossible to fulfil while you are away from the area

The Visa requirements of the country you attempt to travel into.

What conditions are imposed for a suspended sentence?

If a Magistrate suspends your imprisonment sentencing, they will likely impose some conditions. These conditions are always related to the peculiarities of the offence and serve as corrections for the offence.

• Community Corrections supervision

The court may order you under the guidance of a parole officer or a Community Corrections supervision. The program will usually remain in place for as long as the court deems necessary.

• Counselling

The court can order that you attend drug or alcohol abuse counselling as some conditions for your good behaviour bond.

If the offender obeys all the conditions and other requirements (often with documented proof) the court issues no further penalty. However, defaulting from one or multiple conditions leads to a court summon, and likely proper sentencing.

• Forbidden from obtaining certain licenses

When a person is granted a Good behaviour Bond, the person is usually disqualified from obtaining;

• A firearm licenses
• Any part of an ammunition

The offender/defendant may also be required to submit themselves for gunshot residue tests

What offences are not eligible for the Section 12 dismissal?

If you commit certain offences, the court will not accept your application for a Good Behaviour Bond. These offences include cases where grievous injury (physical, mental, psychological, emotional, and related) occurred.

These offences are given in three categories under the Australian laws;

• Serious and organised crime offences or specified offence against the police; or
• A serious sexual offence; or
• A designated offence

And

• Within five years immediately preceding the date on which the offence is committed, a court already suspends a sentence of imprisonment or period of detention imposed on the defendant for a designated offence.

• Participation in a criminal organisation;
• Blackmail or abuse of public office, especially where the offence is aggravated by the benefit of or in connection with a criminal organisation;
• Offences concerning witnesses and jurors;
• Offences of trafficking and manufacturing of controlled drugs; and
• Sale, supply or administration of controlled drugs or equipment to children or in a school zone

• attempted manslaughter and attempted murder where the victim is a police officer; and
• causing serious harm to a police officer.

• Aiding suicide;
• Unlawful threats and unlawful stalking;
• Dangerous driving to escape a police pursuit;
• Causing harm or causing serious harm;
• Shooting at police officers;
• Kidnapping;
• Robbery;
• Serious criminal trespass; and
• Assaults with intent.

Therefore, the court will not grant suspended sentencing for serious offences like;

• Rape;
• Compelled sexual manipulation;
• Persistent sexual abuse of a child;
• Sexual exploitation of a person with cognitive impairment;
• Abduction;
• Procuring sexual intercourse;
• Incest;
• Unlawful sexual intercourse;
• Indecent assault;
• Production or dissemination of child exploitation material;
• Procuring a child to commit an indecent act

Breaching a Suspended Sentence

While on a suspended sentence (Section 12 dismissal), the court expects you to be of good behaviour.

An offender can breach/void their Good Behaviour Bonds through any of the following actions;

• Committing another offence of any kind
• Failing to abide by other conditions set for the bond, including;
• Not attending counselling
• Repeatedly missing your appointments with your Community corrections supervisor

If you breach your suspended sentence of imprisonment, the court will revoke the order, unless it is proven that:

• The charge of the offender’s failure to comply with the bond was “trivial”; or
• There are good reasons for excusing the offender’s failure to comply with the conditions of the bond.

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