Without Conviction Good Behaviour Bonds Explained
Learn how to avoid a recorded conviction and criminal record with a Section 97 good behaviour bond without conviction where the Court finds good reason.
Section 97 of the Sentencing Act 2017 (SA)
In South Australia, a court may discharge an offender without recording a conviction under section 97 of the Sentencing Act 2017 (SA) if they enter into a Good Behaviour Bond. The power is distinct from section 24 (penalty without conviction).
Instead section 97 is a disposition of leniency available where “good reason” exists, typically accompanied by a good behaviour bond (with or without conditions). Its purpose is protective and rehabilitative; it is not to render the sentence harsher.
Sentencing statistics and research
- In 2023 to 24, there were 515,460 defendants sentenced across all Criminal Courts in Australia.
- 97% or 447,122 cases resulted in a guilty outcome.
- Up to 2.8 million criminal-record checks were processed nationally in 2010.
- Victorian police policy, until recently, released every finding of guilt (convicted or not), effectively nullifying the court’s mercy.
- Long-term UK data show employment cuts recidivism by 33-50 % – reinforcing the public-safety rationale for Section 24.
- Recent employer-attitude studies cited by Monash University found that ex-offenders rank below every other disadvantaged cohort except severe psychiatric disability when managers weigh hiring risk;
Talon Legal regularly secures section 97 discharges without conviction in summary and, where justified, more serious matters. We prepare persuasive submissions grounded in binding case authorities and have a deep understanding of sentencing laws.
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Get a Free Case Review or call (08) 7094 2021, if you, or someone you know is charged with traffic offences or criminal charges in South Australia, and are worried about the consequences of a conviction. Your future may depend on it.
Table of Contents
- Employment impact (Hodgins line)
- Youth
- Good character / antecedents
- No prior violence / limited record
- Unlikely to reoffend
- Isolated conduct; no injury
- Genuine remorse
- Personal deterrence not required
- Rehabilitation via supervised bond
- Disproportionate consequences; mercy
- Victim stance / co-parenting context
- Statutory pathway — s 24
- Trifling dismissal — s 23
- Rehabilitation purpose — s 3
- SA line: employment detriment = extenuation
- s 97 “good reason” — benefit of honest life
- Court may act without request
- Limit: blatant, deliberate offending
- s 39 discretion wider than s 24
- Rare for indictables
- “Appear for sentence” must be explicit
- Community service as bond condition
- Not to harshen sentence
- Call-up only if express term
- Serious offences: exceptional but possible
- Regulatory/social offences: sparing use
- Separate bonds per offence
- Applies to YO Act s 26
- Appeal lies from MC orders
- No retrofit on appeal
- Mandatory penalties limit
- Weigh offender vs public benefit
- No licence disq. if no conviction
- “Without conviction” is declaratory
- Context: still “convicted” elsewhere
- Conviction for deterrence/employers
- Conviction as public declaration
- Simple bond: no extra conditions
| Reason / principle | How it appears (rule / rationale) | Pinpoint | Supporting authority | Full citation |
|---|---|---|---|---|
| Serious adverse impact on employment | Conviction would “seriously hamper” overseas/clearance-dependent work; given “considerable weight” where public protection allows. | Hodgins [10], [16] | O’Hanlon; MacGregor; Buttigieg | O’Hanlon v SA Police (1994) 62 SASR 553; MacGregor v Police (1995) 66 SASR 269; Buttigieg v Police (1999) 74 SASR 229. |
| Youth of the offender | Relative youth weighed in favour of non-conviction. | Hodgins [11] | O’Hanlon; MacGregor | 62 SASR 553; 66 SASR 269. |
| Good character / antecedents | Positive antecedents/employment record support mercy. | Hodgins [11] | O’Hanlon; MacGregor | 62 SASR 553; 66 SASR 269. |
| No prior violence / limited record | Absence of prior violence and only minor traffic matters supported leniency. | Hodgins [9] | MacGregor | MacGregor v Police (1995) 66 SASR 269. |
| Unlikely to reoffend | Low re-offending risk aligns with non-conviction discretion. | Hodgins [11], [14] | Former Sentencing Act 1988 s 16(a) | Criminal Law (Sentencing) Act 1988 (SA) s 16(a). |
| Isolated conduct; no injury | One-off; no injury — contextual mitigation. | Hodgins [11] | O’Hanlon | O’Hanlon v SA Police (1994) 62 SASR 553. |
| Genuine contrition and remorse | Express remorse supported non-conviction approach. | Hodgins [11] | O’Hanlon | 62 SASR 553. |
| Personal deterrence not required | Crown accepted no need for personal deterrence (general deterrence still relevant). | Hodgins [12] | — | — |
| Rehabilitation served by non-conviction with supervision | Two-year supervised bond (treatment conditions) under discharge power preferred. | Hodgins [18]–[19] | R v Yousef | R v Yousef [2005] SASC 203; (2005) 155 A Crim R 134. |
| Disproportionate consequences vs seriousness; mercy | If collateral consequences are disproportionate and public protection permits, mercy supports non-conviction. | Hodgins [17] | MacGregor; Yardley v Betts; Webb v O’Sullivan | (1995) 66 SASR 269; Yardley v Betts (1971) 125 CLR 557; Webb v O’Sullivan [1952] SASR 65. |
| Victim’s stance / cordial co-parenting | Complainant sought to withdraw; cordial ongoing contact relevant to risk evaluation. | Hodgins [11] | Context | — |
| Penalty without conviction — gateway | Fine and/or community service; unlikely to reoffend; “good reason” (character, antecedents, age, trifling, extenuation). | s 24 | Sentencing Act 2017 (SA) | Sentencing Act 2017 (SA) s 24. |
| Trifling dismissal (no conviction) | If an offence is so trifling any penalty is inappropriate, court may dismiss without conviction. | s 23 | Sentencing Act 2017 (SA) | s 23. |
| Rehabilitation as a sentencing purpose | Non-conviction aligns with rehabilitation where risk is low and conviction would cause collateral harm. | s 3 | Sentencing Act 2017 (SA) | s 3. |
| “Good reason” — benefit of living honestly | Rehabilitation/public benefit can ground a non-conviction outcome. | [s 97 concept] | Gannon v Harper | Bollen J, 20 Jul 1989 (unrep), BC8900295. |
| Court may act without a defence request | No prerequisite for a specific application or exclusion of other options. | — | Griffin v Police | Griffin v Police [2005] SASC 337. |
| Limit: blatant, deliberate offending defeats “good reason” | Deterrence/culpability can outweigh leniency. | — | Hemming v Neave | Hemming v Neave (1989) 51 SASR 427. |
| s 39 discretion wider than s 24 (compare) | Breadth of discharge power compared to s 24 gateway. | — | Yengi v Police | Yengi v Police [2002] SASC 220. |
| “Good reason” rarely exists for indictables | Caution in indictable matters; exceptional cases only. | — | R v Yousef | R v Yousef [2005] SASC 203; 155 A Crim R 134. |
| “Appear for sentence on breach” must be explicit & agreed | Cannot be added post-signature; must be articulated and agreed. | [subs (1)(b)] | R v Greengrass | R v Greengrass [2009] SASC 194; 104 SASR 262; 264 LSJS 99. |
| Community service may be a bond condition | Available beyond suspended-sentence bonds. | — | Cocchiaro v Police | Cocchiaro v Police [2015] SASC 106; 123 SASR 263. |
| s 97 enables leniency; not to make sentence harsher | Provision operates to treat more leniently in appropriate cases. | — | Ellis v Police | Ellis v Police [2008] SASC 297; 258 LSJS 262. |
| Breach: call-up for original offence only if expressly provided | Absent an express term, breach does not automatically trigger sentencing for the original offence. | — | Police v Duri | Police v Duri (SASC, 18 Dec 1998) BC9806770 (unreported). |
| Serious offences: exceptional but possible | Discretion may still be exercised where justified. | — | Police v Waters | Police v Waters [2011] SASC 38. |
| Regulatory/social legislation: exercise sparingly | Deterrent element requires caution with discharge powers. | — | Piva v Brinkworth | Piva v Brinkworth (1992) 59 SASR 92. |
| Multiple offences: separate bonds required | One bond per offence where multiple s 97 bonds are granted. | — | McQuade v Police | McQuade v Police [1999] SASC 277. |
| Applies to Young Offenders Act s 26 obligations | s 97 framework can govern obligations under s 26. | — | AJK v Police | AJK v Police [2002] SASC 264; 135 A Crim R 1. |
| Appeal lies from Magistrates Court orders | Availability of appellate review confirmed. | — | Morley v Police | Morley v Police [2005] SASC 233. |
| No retrofit on appeal | Sentence cannot be salvaged by s 97 unless the trial court considered prerequisites. | [30]–[31] | DPTI v Krieg | DPTI v Krieg [2013] SASC 37; 63 MVR 105. |
| Mandatory penalties limit | Where two penalties exist (one mandatory), non-conviction can only apply to the non-mandatory one. | — | Harding v Police | Harding v Police [2011] SASC 114; 110 SASR 197; 275 LSJS 627. |
| Weigh offender benefit vs public benefit | Balancing exercise governs whether a conviction should be recorded. | — | R v Stubberfield | R v Stubberfield [2010] SASC 9; 106 SASR 91; 267 LSJS 308. |
| No licence disqualification if no conviction | Disqualification under RTA s 168 is a penalty; cannot be imposed if no conviction is recorded. | — | Miles v Police | Miles v Police [2009] SASC 181; 104 SASR 127; 264 LSJS 38. |
| “Without recording a conviction” is declaratory | Signifies special/extenuating circumstances rather than absence of guilt. | — | Miles v Police | 104 SASR 127; [2009] SASC 181. |
| Context: may still be “convicted” under other statutes | Status depends on the statute; collateral effects may remain. | — | Vreeker v Police | Vreeker v Police [2004] SASC 90; 144 A Crim R 544. |
| Conviction may be needed for deterrence / employer notice | Public interest (denunciation/employer awareness) can justify recording a conviction. | — | Phillips v Police | Phillips v Police [2010] SASC 240. |
| Conviction as public declaration of serious wrongdoing | Symbolic/public accountability may warrant recording a conviction. | — | R v McGaffin | R v McGaffin [2010] SASCFC 22; 206 A Crim R 188. |
| Simple bond: no extra conditions permitted | Any condition beyond subs (2) is void and unenforceable. | [subs (2)] | R v Greengrass | R v Greengrass [2009] SASC 194; 104 SASR 262; 264 LSJS 99. |
What happens if I am convicted?
Recording a conviction can permanently affect:
| Area | Impact |
|---|---|
| Travel & Visas | Mandatory disclosure on job applications; loss of professional licences. |
| Employment | Refusal or delay for visas to USA, Canada, EU & Asia-Pacific. |
| Insurance & Finance | Higher premiums and loan rejections. |
| Reputation | Ongoing stigma in community and online records. |
| Security Clearances | Certain industries that require negative vetting clearances may decline to employ you. |
What is a no conviction bond?
A no conviction bond, also known as a good behaviour bond, is an agreement where a court discharges a defendant from further penalty for an offence, provided they agree to be of good behavior for a set period. During this time, they must not commit any new offences. If they successfully complete the bond without breaching it, the court does not record a conviction. However, if they breach the bond, the court can revoke it and impose a sentence for the original offence.
A section 97 no conviction good behaviour bond removes the consequences of a criminal conviction while permitting the court to impose a bond to promote rehabilitation, reintegration and ongoing deterrence.
Why avoiding a conviction still matters
A recorded conviction can follow you for years via employment disclosures, visas, some registrations and clearances, and reputational checks. Section 97 exists to avoid disproportionate collateral harm where denunciation and rehabilitation can be achieved without a conviction.
The focus is community protection and your prospects of living honestly, not a “free pass”. Courts recognise that a recorded conviction can cause disproportionate and enduring collateral harm to employment, licensing, travel and reputation. The power to discharge an offender without conviction power exists to avoid that harm.
Section 97 (summary) – If the court finds good reason to do so, it may discharge an offender without recording a conviction and may release the offender on a bond (with or without conditions). The power is to be exercised as a form of leniency where appropriate; it is not to make the sentence more severe.
Consequences even without a conviction
- Licence: where disqualification is a penalty contingent on conviction, it should not be imposed with section 97. Separate administrative suspensions (e.g., immediate loss of licence) may still apply.
- DNA/Fingerprints: may still be ordered depending on the statutory scheme.
- Professional notifications: some bodies (AHPRA, TRB, CBS etc.) require disclosure of findings of guilt irrespective of conviction.
- Migration/security: visa and clearance forms often ask about findings of guilt. Answer according to the form’s wording.
How a no-conviction good-behaviour bond (s 97) actually works
Bottom line: after a finding of guilt, the Court may discharge you without recording a conviction on you entering a good-behaviour bond for a set term. It’s a leniency tool — not a penalty — and must not make the sentence harsher: see Ellis v Police [2008] SASC 297.
When the discretion is engaged — “good reason”
- Good reason includes employment/clearance harm, youth, good antecedents, isolated conduct and low re-offending risk: O’Hanlon v SA Police 62 SASR 553; MacGregor v Police 66 SASR 269; Buttigieg v Police 74 SASR 229; applied in Police v Hodgins.
- No formal application needed: the Court can invoke s 97 on its own motion: Griffin v Police [2005] SASC 337.
- Indictables/regulatory: rare for indictables (R v Yousef [2005] SASC 203) and used sparingly where general deterrence dominates (Piva v Brinkworth 59 SASR 92).
Form of the bond
- Simple bond = good-behaviour undertaking within s 97(2). Extra add-ons beyond the statute are void: R v Greengrass [2009] SASC 194.
- “Appear for sentence on breach” must be expressly stated and agreed then and there — it cannot be retro-fitted later: Greengrass.
- Community service via bond is available inside the discharge framework: Cocchiaro v Police [2015] SASC 106.
Breach
- Without an express call-up term, breach doesn’t automatically expose you to sentence for the original offence (enforce per the bond/statute): Police v Duri (SASC, 18 Dec 1998) (unrep).
- With an express call-up term, the Court may sentence for the original offence on proof of breach (per the recorded terms): Greengrass.
Statutory/collateral limits
- Mandatory penalties: s 97 can’t nullify a separate mandatory consequence; it only works on the non-mandatory piece: Harding v Police [2011] SASC 114.
- Licence disqualification: where disqualification follows conviction, it can’t be imposed if no conviction is recorded (admin suspensions can still apply): Miles v Police [2009] SASC 181.
- Balancing test: whether to record a conviction = weigh offender benefit vs public interest/denunciation: R v Stubberfield [2010] SASC 9, Phillips v Police [2010] SASC 240, R v McGaffin [2010] SASCFC 22.
Section 97 vs Section 24 (quick compare)
- s 97: discharge without conviction on a bond (simple or with prescribed terms). It’s a disposition, not a penalty. See Ellis.
- s 24: impose a penalty (fine/CSO) without conviction if unlikely to reoffend and there’s “good reason” (character, antecedents, age, trifling, extenuation): Sentencing Act 2017 (SA) s 24.
Section 97, 24 and 23 of the Sentencing Act 2017 (SA)
| Feature | Section 97 Discharge | Section 24 Without Conviction | Section 23 Trifling Dismissal |
|---|---|---|---|
| What happens | No conviction; bond (disposition) | Fine/CSO without conviction (penalty) | Charge dismissed; no penalty |
| Trigger | “Good reason” (rehab/public benefit) | Unlikely to reoffend + “good reason” | Offence so trifling any penalty is inappropriate |
| Use case | Rehab/leniency; avoid collateral harm | Impose a light penalty but spare conviction | Minor or atypical offences. |
- Section 97 discharges a defendant upon entering into a promise to be of good behaviour for a period of time. If that promise is broken, they will be brought to Court for sentencing of the original offence and any other offences.
- Unlike section 97, section 24 applies when the Court intends to impose a fine and/or community service but declines to record a conviction. It is therefore used for less serious offences.
- Section 97 instead proceeds by bond (good behaviour, conditions), with specific rules for what can and cannot be added.
- It is used for first-time or or less serious matters where rehabilitation outweighs the public interest in seeing a conviction being recorded.
- On the other hand, section 23 is used for offences that are considered trifling, fleeting, of little importance or atypical and result in a dismissal.
Why Choose Us?
- Expert criminal defence lawyers in Adelaide with a proven record of securing without conviction outcomes and non-conviction orders for summary and indictable offences.
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Avoiding a conviction may be the difference between a bright future and lifelong limitations due to the stigma of a criminal conviction.
Talon Legal routinely secures Section 97 without conviction good behaviour outcomes, even in serious criminal, traffic or regulatory matters to protect clients statewide from the stain of a criminal record.
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