(3) Where a charge or charges against a person is or are dismissed, or a person is discharged, in pursuance of an order made under subsection (1):
(a) the person shall have such rights of appeal on the ground that he or she was not guilty of the offence or offences concerned with which he or she was charged as he or she would have had if the court had convicted him or her of the offence or offences concerned; and
(b) there shall be such rights of appeal in respect of the manner in which the person is dealt with for the offence or offences concerned as there would have been if:
(i) the court had, immediately before so dealing with him or her, convicted him or her of the offence or offences concerned; and
(ii) the manner in which he or she is dealt with had been a sentence or sentences passed upon that conviction.
(4) Where a person is discharged in pursuance of an order made under subsection (1), the court shall, as soon as practicable, cause the order to be reduced to writing and a copy of the order to be given to, or served on, the person.
20 Conditional release of offenders after conviction
(1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:
(a) by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(i) that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;
(ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences (if any), or pay such costs in respect of his or her prosecution for the offence or offences (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A) on or before a date specified in the order; or
(B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order;
(iii) that he or she will pay to the Commonwealth such pecuniary penalty (if any) as the court specifies in the order (being a penalty not exceeding the maximum amount of the penalty that, in accordance with subsection (5), the court may specify in respect of the offence or offences) on or before a date specified in the order or by specified instalments as provided in the order;
(iv) that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or
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Example: A condition under subparagraph (iv) could be that the person will undertake a specified counselling, education or treatment program during a specified part of, or throughout, the specified period.
(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a):
(i) if none of the offences is a Commonwealth child sex offence—either immediately or after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or
(ii) if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances—after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or
(iii) if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances—immediately.
(1A) Subject to subsection (1B), if the court specifies under paragraph (1)(a) or (b), as mentioned in subparagraph (1)(a)(iv), the condition that the person will, during the specified period:
(a) be subject to the supervision of a probation officer appointed in accordance with the order; and
(b) obey all reasonable directions of the probation officer;
the court must also specify the condition that the person will not travel interstate or overseas without the written permission of the probation officer.
(1B) If at least one of the offences the person is convicted of is a Commonwealth child sex offence, the court must specify under paragraph (1)(b), as mentioned in subparagraph (1)(a)(iv), the conditions that the person will, during the specified period:
(a) be subject to the supervision of a probation officer appointed in accordance with the order; and
(b) obey all reasonable directions of the probation officer; and
(c) not travel interstate or overseas without the written permission of the probation officer; and
(d) undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
(2) Where a court proposes to release a person by order made under paragraph (1)(a), it shall, before making the order, explain or cause to be explained to the person, in language likely to be readily understood by him or her:
(a) the purpose and effect of the proposed order;
(b) the consequences that may follow if he or she fails, without reasonable cause or excuse, to comply with the conditions of the proposed order; and
(c) that any recognizance given in accordance with the order may be discharged or varied under section 20AA.
(2A) A person is not to be imprisoned for a failure, under an order made under subsection (1), to pay an amount by way of reparation, restitution or compensation or an amount in respect of costs.
(3) Where a person is released in pursuance of an order made under subsection (1) without sentence being passed on him or her, there shall be such rights of appeal in respect of the manner in which the person is dealt with for the offence or each offence in respect of which the order is made as there would have been if the manner in which he or she is dealt with had been a sentence passed upon his or her conviction for that offence.
(4) Where an order is made under subsection (1) in respect of a person, the court shall, as soon as practicable, cause the order to be reduced to writing and a copy of the order to be given to, or served on, the person.
(5) The maximum amount of the penalty that a court may specify in respect of the offence or each offence in an order made under subsection (1) in relation to a person is:
(a) where the offence is punishable by a fine—the amount of the maximum fine that the court is empowered to impose on the person for the offence; or
(b) where the offence is not punishable by a fine:
(i) if the court is not a court of summary jurisdiction—300 penalty units; or
(ii) if the court is a court of summary jurisdiction—60 penalty units.
(6) Paragraph (1)(b) does not apply in relation to a minimum non‑parole offence mentioned in section 19AG, or offences that include one or more such minimum non‑parole offences. This subsection has effect despite subsection (1) and sections 19AC and 19AE (which permit or require a court to make a recognizance release order in certain circumstances).
Note: If the court sentences the person to imprisonment for a minimum non‑parole offence, it must fix a non‑parole period under section 19AG.
20A Failure to comply with condition of discharge or release
(1) Where a person has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), and information is laid before a magistrate alleging that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, the magistrate may:
(a) issue a summons directing the person to appear, on a date, at a time and at a place fixed in the summons, before the court by which the order was made; or
(b) if the information is laid on oath and the magistrate is of the opinion that proceedings against the person by summons might not be effective—issue a warrant for the apprehension of the person.
(1A) Subsection (1) does not apply to a failure by a person to comply with a condition of an order (other than a failure constituted by the commission by the person of an offence) unless the information is laid before the end of the period for which the person is required by the order to give security to be of good behaviour.
(2) Where:
(a) a person who is served with a summons issued under subsection (1) fails to attend before the court as required by the summons; or
(b) a person who has been admitted to bail under subsection (4) fails to attend before the court as required by the conditions of his or her bail;
the court may, on proof of the service of the summons or of the admission of the person to bail, as the case may be, issue a warrant for the apprehension of the person.
(3) A warrant issued under subsection (1) or (2) shall authorize the apprehension of the person, the bringing of the person before the court as soon as practicable after his or her apprehension and the detention of the person in custody until he or she is released by order of the court or in accordance with subsection (4).
(4) Where a person is apprehended in pursuance of a warrant issued under subsection (1) or (2) and the court before which he or she is to be brought is not sitting at the time of his or her arrest, the person shall be brought before a magistrate, who may:
(a) admit the person to bail, on such recognizance (with or without sureties) as the magistrate thinks fit and on the condition that the person appears, on such date, at such time and at such place as the magistrate specifies, before that court; or
(b) direct that the person be kept in custody in accordance with the warrant.
(5) Where, in accordance with this section, a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), appears or is brought before the court by which the order was made, the court (whether or not constituted by the judge or magistrate who made the order), if it is satisfied that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, may:
(a) in the case of a person who has been discharged in pursuance of an order made under subsection 19B(1):
(i) revoke the order, convict the person of the offence or offences in respect of which the order was made and, subject to subsection (6), deal with the person, for that offence or those offences, in any manner in which he or she could have been dealt with for that offence or those offences if the order had not been made; or
(ii) take no action; or
(b) in the case of a person who has been released in pursuance of an order made under paragraph 20(1)(a):
(i) without prejudice to the continuance of the order, impose a pecuniary penalty not exceeding 10 penalty units on the person;
(ii) revoke the order and, subject to subsection (6), deal with the person, for the offence or offences in respect of which the order was made, in any manner in which he or she could have been dealt with for that offence or those offences if the order had not been made and he or she was before the court for sentence in respect of the offence or offences; or
(iii) take no action; or
(c) in the case of a person who has been released by an order made under paragraph 20(1)(b):
(ia) impose on the person a monetary penalty of not more than $1000; or
(ib) subject to subsection (5A), amend the order so as to extend the period for which the person is required to give security to be of good behaviour; or
(ic) revoke the order and make an order under section 20AB; or
(i) revoke the order and deal with the person for the offence or offences in respect of which the order was made by ordering that the person be imprisoned for that part of each sentence of imprisonment fixed under paragraph 20(1)(b) that the person had not served at the time of his or her release; or
(ii) take no action.
(5A) The court may not, under subparagraph (5)(c)(ib), extend a period so that the period as extended would be more than 5 years.
(5B) If a court, under subparagraph (5)(c)(ib), amends an order made in respect of a person under paragraph 20(1)(b), the security given by the person under that subsection is, by this section, taken to be a security that the person will be of good behaviour for the period stated in the order as amended.
(6) Where a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, the court, in so dealing with the person, shall, in addition to any other matters that the court considers should be taken into account, take into account:
(a) the fact that the order was made;
(b) anything done under the order; and
(c) any other order made in respect of the offence or offences.
(7) Where a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, the court may, in addition to dealing with him or her for that offence or those offences, order that any recognizance entered into by him or her, or by a surety for him or her, shall be estreated and any other security given by or in respect of him or her shall be enforced.
(8) Where a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, there shall be such rights of appeal in respect of the manner in which the person is dealt with for that offence or those offences as there would have been if:
(a) in the case of a person who has been discharged in pursuance of an order made under subsection 19B(1)—the manner in which he or she is dealt with had been a sentence or sentences passed upon his or her conviction for the offence; or
(b) in the case of a person who has been released in pursuance of an order made under subsection 20(1):
(i) the court had, immediately before so dealing with him or her, convicted him or her of the offence or offences; and
(ii) the manner in which he or she is dealt with had been a sentence or sentences passed upon that conviction.
(9) A pecuniary penalty imposed on a person by virtue of subparagraph (5)(b)(i) shall, for the purposes of the laws of the Commonwealth, and of the States and Territories, with respect to the enforcement and recovery of fines ordered to be paid by offenders, be deemed to be a fine imposed on the person upon his or her conviction for an offence against the law of the Commonwealth.
20AA Power to discharge or vary conditions of recognizance
(1) Where a person has entered into a recognizance in pursuance of an order made under subsection 19B(1) or 20(1), any of the following persons may apply to the court by which the order was made for the discharge of the recognizance or for a variation of its terms:
(a) an authorized person;
(b) the person who entered into the recognizance;
(c) a surety for the person who entered into the recognizance;
(d) a probation officer appointed in accordance with the order (in this section referred to as a probation officer).
(2) Where an application is made under subsection (1) for the discharge of a recognizance, the court (whether or not constituted by the judge or magistrate who made the order in pursuance of which the recognizance was entered into) may, if it is satisfied that notice as required by subsection (5) or (6) has been given and that the conduct of the person who entered into the recognizance has been such as to make it unnecessary that he or she should remain bound by the recognizance, discharge the recognizance.
(3) Where an application is made under subsection (1) for a variation of the terms of a recognizance, the court (whether or not constituted by the judge or magistrate who made the order in pursuance of which the recognizance was entered into) may, if it is satisfied that notice as required by subsection (5) or (6) has been given and it thinks fit to do so, vary the terms of the recognizance in all or any of the following ways:
(a) by extending or reducing the duration of the recognizance;
(b) by altering the conditions of the recognizance;
(c) by inserting additional conditions in the recognizance;
(d) by reducing any liability to make reparation or restitution, by reducing any instalment of any reparation or restitution or by reducing the amount of, or of any instalment of, any costs, compensation or penalty; or
(e) by altering the manner in which any reparation, restitution, compensation, costs or penalty, or any instalment or any reparation, restitution, compensation, costs or penalty, is or are to be made or paid.
(4) The court shall not extend the duration of a recognizance beyond:
(a) in the case of a recognizance entered into in pursuance of an order made under subsection 19B(1)—the period of 3 years from the date on which the recognizance was entered into; or
(b) in the case of a recognizance entered into in pursuance of an order made under subsection 20(1)—the period of 5 years from the date on which the recognizance was entered into.