Nick Kyrgios was in the news recently after he had an assault charge dismissed by a Magistrate despite pleading guilty. This prompts the question, in what circumstances can charges be dismissed by the Court after an offender enters a plea of guilty?
Kyrgios was charged under the Crimes Act 1914, a federal piece of legislation. When sentencing an offender under the Crimes Act, the Court may decide to dismiss the charge without any conviction.
The Court can exercise its discretion to dismiss a charge after the charge is proved, if the Court is of the option that ‘it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation’. When deciding this, the Court must rely on one of the following criteria:-
- the character, antecedents (background), age, health or mental condition of the person; or
- the extent (if any) to which the offence is of a trivial nature; or
- the extent (if any) to which the offence was committed under extenuating circumstances.
If the Court decides to dismiss a charge under the Crimes Act, they can either dismiss the charge without conditions, discharge the offender under certain conditions or sentence the offender to probation.
The Crimes Act only relates to the sentencing of federal offences. Offences under Queensland legislation, such as offences under the Queensland Criminal Code, are sentenced with regard to the Penalties and Sentences Act 1992.
Under the Penalties and Sentences Act, the Court has the power to make the following orders when sentencing an offender:-
- an order that releases the offender absolutely or;
- an order that places the offender under recognisance, with conditions that the offender be of good behavior and appear for conviction and sentence if called upon during a stipulated period.
The above orders are similar to an order dismissing a charge under the Crimes Act. In making such an order under the Penalties and Sentences Act, the Court must rely on the same criteria stipulated in the Crimes Act.
Although the Crimes Act only requires the Court to rely on one of the three above criteria, the Penalties and Sentences Act requires Queensland Courts to rely on all three criteria, as well as anything else that the Court thinks relevant. In other words, Queensland Courts must find that all three of the criteria provide a reason to dismiss the charge. In light of the above, it is rare for Queensland Courts to make these orders.
