Recommendation 19
Mandatory driver licence disqualifications should apply to a finding of guilt without a conviction recorded for adult and youth offenders.
Recommendation 20
Where licence disqualification is an available option, a court should have a discretion to impose a period of disqualification from driving on an offender who is found guilty without a conviction being recorded for adult and youth offenders.
659 Note in New South Wales, demerit points are not awarded if a conviction is not recorded, Road Transport (Driver Licencing) Act 1998 (NSW) s 14(3A).
660 It is noted that there is no power to impose a licence disqualification as a sanction under the Youth Justice Act 1997 (Tas) (unlike the Sentencing Act 1997 (Tas) s 55). This paper makes no recommendation that one be included.
661 See Victoria (Children, Youth and Families Act 2005 (Vic) s 360(5)(b)); New South Wales (Children (Criminal Proceedings) Act 1987 (NSW) s 33(5)(a), (6)) – except where dismissal is ordered; Australian Capital Territory (Crimes (Sentencing) Act 2005 (ACT) s 18(2), (5)(f)); Queensland (Penalties and Sentences Act 1997 (Qld) s 12(4)(a) provides that a finding of guilt without recording a conviction does not prevent a court from making any other order that it is able to make under this Act or another Act because of conviction. The Transport Operations (Road Use Management) Act 1995 (Qld) s 86 allows the court to order the disqualification of a licence. This applies to children by virtue of Youth Justice Act 1992 (Qld) s 184(2) (except as provided by this Act or another Act, a finding of guilt is not regarded as a conviction) and Penalties and Sentences Act 1997 (Qld) s 6 (this Act does not apply to a child under the Youth Justice Act except to the extent allowed)); Western Australia (Young Offenders Act 1994 (WA) s 55(4)); and the Northern Territory (Youth Justice Act (NT) s 88).
4.2.6 Restitution, compensation and costs
4.2.6.1 Restitution and compensation
Some consequences that currently attach to a finding of guilt, such as the power of the court to make ancillary orders such as restitution and compensation under the Sentencing Act 1997 (Tas) and the Youth Justice Act 1997 (Tas) following a finding of guilt, seem largely unobjectionable.664 These are not a punitive response, but have a value as a rehabilitative or restorative measure.665 This corresponds with the purposes of the discretion not to record a conviction.
In addition to the power of the court to make an order for restitution and/or compensation under the sentencing legislation, the Sentencing Advisory Council has identified 35 provisions where a court has the power to make an order for restitution or compensation. Currently there is not a consistent approach to the issue of whether or not these orders attach to a finding of guilt without recording a conviction. In 14 provisions, the orders apply to a finding of guilt, either because they are a mandatory penalty (3 provisions) or because the provisions expressly apply to a finding of guilt (11 provisions). In the remaining 21 provisions, restitution and compensation can only be made on conviction. It is the Council’s view that, consistent with the provisions of the Sentencing Act 1997 (Tas) and the Youth Justice Act
1997 (Tas), the court should have the power to make an order for compensation or restitution following a finding
of guilt without recording a conviction. Accordingly, the Council’s recommendation is that court should have the power to make an order for compensation or restitution following a finding of guilt without recording a conviction. This recommendation could be achieved by inserting a provision to that effect in the Sentencing Act 1997 (Tas) and the Youth Justice Act 1997 (Tas).
4.2.6.2 Costs
Although costs orders are rarely made, it would also seen uncontentious to provide the court with a discretion to make a costs order following a finding of guilt (in the appropriate case), and while this power exists in some circumstances, the Council’s recommendations are that this power should be extended to all non-conviction sentences under the Sentencing Act 1997 (Tas) and the Youth Justice Act 1997 (Tas).666
It is the Council’s view that there is no inconsistency between the policy of the Sentencing Act 1997 (Tas) to allow the court to make a non-conviction order and the ability of the court to make an order for costs (depending on the circumstances of the case) following a finding of guilt given that costs are compensatory in nature rather than punitive.667
Similarly, it is not inconsistent with the policy of the Youth Justice Act 1997 (Tas) to focus on the accountability of young people and the rehabilitation of the offender.668 Currently, there is no independent power under the
Youth Justice Act 1997 (Tas) for the court to make a costs order (either on conviction or a finding of guilt) but a
youth may receive a costs order under other statutes that allow a court to impose costs.669 It seems appropriate that the court also has a discretion under the Youth Justice Act 1997 (Tas) to make a costs order on a finding of guilt with or without a recorded conviction, but it is accepted that usually there will be no order for costs. If these recommendations are accepted, it will be necessary to amend the Sentencing Act 1997 (Tas), s 63 and the Youth
Justice Act 1997 (Tas) to give them effect.
664 Sentencing Act 1997 (Tas) ss 10(2)(a), 65, 68; Youth Justice Act 1997 (Tas) s 47(2). 665 MacKenzie and Stobbs, above n 73, 119.
666 See [2.1]. This is the case in New South Wales (Criminal Procedure Act 1986 (NSW) s 215) and Victoria (in relation to summary offences – Magistrates’ Court Act 1989 (Vic) s 131(1) for adult offenders). Costs orders can also be made against young offenders in NSW (Children (Criminal Proceedings Act) 1987 (NSW) s 42A), Victoria (Children, Youth & Families Act 2005 (Vic) s 361(3)(b)), and Western Australia (Young Offender Act 1994 (WA) s 57). It is noted that the Sentencing Advisory Council made a recommendation that the Sentencing Act 1997 (Tas) be amended to include an ancillary sentencing option to order an offender convicted of a fire- related offence to reimburse the costs incurred by the State to respond to the fire, Sentencing Advisory Council [Tasmania], Arson & Deliberately Lit Fires, Final Report 1 (2012) Recommendation 7.
667 See Freiberg, above n 14, [8.05].
668 See Tasmania, Parliamentary Debates, House of Assembly, Youth Justice Bill 1997, Thursday 2 October 1997, pt 2 40-95 (Cleary). See also Freiberg, above n 14, [16.40].
If courts are to have a discretion to make an order for costs following a finding of guilt it will also be necessary to reconsider the 25 statutes that make provision for the payment of costs – either associated with a prosecution (such as testing of substances, investigation of the offence, or the care of animals) or for the recovery of costs incurred by emergency services.670 In 17 of the provisions, a finding of guilt without recording a conviction has the same effect as a conviction if the proceedings against the offender have been adjourned on conditions without recording a conviction or if the charge has been dismissed without recording a conviction.671 However, if the court makes a probation order without recording a conviction, a court can only make a costs order on conviction.672 Consequently, it will be necessary to make amendments to provide the court with power to make a costs order for any finding of guilt without a conviction recorded. This recommendation could be achieved by inserting a provision to this effect in the Sentencing Act 1997 (Tas) and the Youth Justice Act 1997 (Tas).