A criminal record follows a person into every job application. Section 132 is the District Court’s power to decide that a proved charge should not produce one.
The provision
Where a person is charged before a Court with a simple offence or an indictable offence triable summarily, and the Court thinks that the charge is proved but is of opinion that, having regard to (a) the character, antecedents, age, health or mental condition of the person charged; or (b) the trivial nature of the offence; or (c) the extenuating circumstances under which the offence was committed, it is inexpedient to inflict punishment, or other than a nominal punishment, or that it is expedient to release the offender on probation, the Court may, without proceeding to conviction, make an order (d) dismissing the charge; or (e) discharging the offender conditionally on his entering into a recognizance, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as is specified in the order.
The Magistrates’ Manual calls this “the ultimate discretion” and “an essential judicial power which enables the Magistrate to do justice in every case”. It applies whether the charge was proved on a plea of guilty or after a hearing.
Two forms of order
| Dismissal (s 132(1)(d)) | Conditional discharge (s 132(1)(e)) | |
|---|---|---|
| Conviction recorded | No | No, unless the offender is later called up |
| Conditions | None | Recognizance to be of good behaviour and to appear for conviction and sentence if called on, for up to three years; sureties optional |
| If the offender reoffends | Nothing further on the old charge | May be called up, convicted and sentenced for the original offence, in addition to any penalty for the new one |
| Typical use | Trivial offence; young first offender; technical breach | Offence not trivial but offender deserves a chance; probation contemplated |
The grounds
The three grounds are alternatives; one is enough. Under (a) the Court looks at the offender: a clean record, youth, old age, illness, or a mental condition. Under (b) it looks at the offence: a small amount, a momentary lapse, no harm done. Under (c) it looks at the circumstances: provocation, need, pressure, or compensation already paid by custom. The Court must then conclude that punishment is inexpedient, or that only a nominal punishment is warranted, or that probation is expedient. A plea of guilty and genuine remorse commonly support the conclusion. See pleading guilty.
What the order does and does not do
An order under Subsection (1) shall, for the purpose of (a) revesting or restoring stolen property; (b) enabling the Court to make orders as to the restitution or delivery of property to the owner; (c) the payment of money in connection with that restitution; and (d) an appeal against conviction, have the same effect as a conviction.
So the offender can still be ordered to give back what was taken, and, importantly, can still appeal. A person who says the charge was not proved at all is not deprived of the right to challenge that finding merely because the Court was lenient. And the Court retains its other powers: costs under section 260(1)(a), compensation under the Criminal Law (Compensation) Act, and restriction of movement under section 205B, none of which depends on a conviction being recorded.
Breach of the bond
The recognizance under section 132(1)(e) is conditioned on the offender appearing for conviction and sentence when called on. If the offender breaches the condition of good behaviour, typically by committing another offence, within the period, the Court may call him up, convict him of the original offence and sentence him for it. The recognizance may also be forfeited under section 272, with the sureties liable. A defendant offered a conditional discharge should understand that it suspends the consequence; it does not erase it.
Comparison with the Criminal Code and probation
Section 19 of the Criminal Code gives a court sentencing for a Code offence a comparable set of options, including a good behaviour recognizance, and applies to Schedule 2 offences tried summarily; section 132 applies to those as well as to simple offences. Section 16 of the Probation Act, as the Manual describes it, allows the Court to suspend or defer a sentence and release the offender on probation for between six months and five years, but a probation order follows a conviction and requires a probation officer to supervise it. Section 132 is the only one of the three that avoids a conviction altogether. See what is a good behaviour bond.
Asking for it
A defendant, or his representative, should ask for a section 132 order expressly and address each of the grounds. The Court is not obliged to consider it unprompted, and the Manual’s advice to magistrates to look carefully at the required factors before making such an order implies that the factors should be put before them. Evidence helps: a character reference, proof of employment or study, a receipt for compensation paid, a medical certificate. Once sentence is pronounced without the order, the magistrate is functus officio and the request can only be made on appeal.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.