In this article we provide an overview of adjourned undertakings a sentencing outcome available under the Sentencing Act 1991 (Vic). Adjourned Undertakings may be ordered with or without conviction.
In our criminal justice system, Adjourned Undertakings are positioned at the lower end of the sentencing hierarchy.
A catalogue of various sentencing orders is contained under Part 3BA of the Sentencing Act 1991 (Vic), including adjourned undertakings (referred under the Act as 'Release on adjournment).
An adjourned undertaking may be made with conviction (section 72) or without conviction (section 75)
The factors relevant to the recording of a conviction are set out under Section 8 of the Act. A previous article on enhancing your prospects of avoiding a criminal conviction discussed the various matters relevant to the exercise of discretion under section 8.
Table of Contents
What Does An Adjourned Undertaking Require of an Offender?
The most frequent condition imposed by Magistrate or Judge is a condition to be of good behaviour for a determined period of time (maximum of 5 years). However, there is scope for a Court to impose other conditions to foster the rehabilitation of an offender.
The content of section 72 (release on adjournment) with the condition is as follows:
1) A court, on convicting a person of an offence, may adjourn the proceeding for a period of up to 5 years and release the offender on the offender giving an undertaking with conditions attached.
2) An undertaking under subsection (1) must have as conditions:
(a) that the offender attends before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned; and
(b) that the offender is of good behaviour during the period of the adjournment; and
(c) that the offender observes any conditions attached by the court and may include a condition requiring the offender to make a payment to an organisation that provides a charitable or community service or to the court for payment to such an organisation.
(3) Subject to Division 2 of Part 3BA, a court may attach a justice plan condition that the offender participate in the services specified in a justice plan for a period of up to 2 years specified by the court or the period of the adjournment, whichever is the shorter.
(4) An offender who has given an undertaking under subsection (1) may be called on to attend before the court:
(a) by order of the court; or
(b) by notice issued by the proper office of the court.
(5) An order or notice under subsection (4) must be served on the offender not less than 4 days before the time specified in it for the attendance.
(6) If at the time to which the further hearing of a proceeding is adjourned the court is satisfied that the offender has observed the conditions of the undertaking, it must discharge the offender without any further hearing of the proceeding.
Section 75 (release on adjournment without conviction), is identical apart from making clear the sentencing court may impose conditions without recording a conviction.
Adjourned Undertaking is Signed by The Judicial Officer and The Offender
After a Magistrate or Judge orders an adjourned undertaking, both the offender and judicial officer must sign the Undertaking.
The signed undertaking is entered into the Court's records.
Consequences of Breaching An Adjourned Undertaking
Section 83AC of the Act provides a penalty of 10 penalty units (level 10). In addition to a fine, there are other powers available to the Court for a contravention (breach) and these are set out under section 83AT.
The most significant power of a sentencing Magistrate or Judge has under section 83AT is to cancel and re-sentence an offender for the original offence. Consequently, an offender may be exposed to a more severe penalty in addition to a fine.
For What Purpose is an Adjourned Undertaking used in Sentencing?
Adjourned undertakings are usually imposed where the offence is one of low to moderate criminality, and where an offender has a limited criminal history.
As noted above frequently an adjourned undertaking is often used to foster continued rehabilitation of an offender by requiring continued rehabilitation (mental health, alcohol and or drug counselling, gambling, etc) as part of the Order.
In this way, an adjourned undertaking facilitates a similar sentencing objective to a Community Correction Order without the more onerous requirements for supervision and case management.
Where an offence is minor, and the offender has a very limited criminal history, a requirement to be of good behaviour may be the only condition ordered.
