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May 2017

 LEGISLATION

Updated 19 May 2017

Failure to enter into bonds under the Penalties and Sentences Act 1992

Commencement: This Act commenced 30 March 2017.

A new Div 3AA has been introduced into Pt 3 of the Penalties and Sentences Act 1992. It deals with offenders who fail to enter into recognisances (ie fail to sign bond papers) before leaving court. It comprises ss 33AA-33AF, which puts it between Div 3 and Div 3A.

The new sections apply if the court orders that an offender be released on a bond but the offender leaves the precincts of the court without having signed the bond papers. In such a case the proper officer of the court may give the offender a written notice requiring her or him to attend at the registry and sign the bond papers by a stated date. The notice must also warn the offender that a failure to attend may result in the issue of a warrant for her or his arrest. The notice can be given personally, electronically or by post to the offender's last address known to the court. This represents a trap for itinerant people and is something about which legal practitioners should include a warning when advising clients about their obligations to sign the bond papers.

If the court is satisfied that a notice was properly given and that the offender has failed to comply with it, the court may issue a warrant for the offender's arrest. If the offender is brought before the court under the warrant, or a warrant issued under another Act or in compliance with a bail undertaking, the court may confirm the original order or revoke the order and re-sentence the offender. If a conviction had not previously been recorded, the court may record a conviction. It follows that in appearing for such a client, practitioners will need to be in a position to explain why the offender failed to sign the bond papers in the first place and why the offender did not respond to the notice. The former might encompass matters such as misunderstanding, distraction or preoccupation, limited ability to understand or follow instructions and so on, through to deliberate disobedience. Similar factors might be relevant to the latter issue, with itinerance and similar factors also being relevant.

If the original order was made on the hearing of a complaint of a simple offence under the Justices Act 1886, the offender was arrested under a warrant issued under s 33AC and granted bail and then fails to appear in accordance with the bail, the court may proceed in the absence of the offender. In such a case the court may revoke the original order and re-sentence the offender for the original offence. This includes the option of recording a conviction if one had not been recorded originally. However, in such a case the court may not impose a term of imprisonment. Neither may it order that any statutory licence, registration, certificate, permit or other authority held by the offender be cancelled or suspended, or that the offender be disqualified from holding or obtaining any of these.

The new Division concludes with an evidentiary provision which facilitates proof of various matters for the purposes of proceedings under the Division.

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