Document ID: chunk:federal_register_of_legislation:C2024C00861:section:161
Version: federal_register_of_legislation:C2024C00861
Segment Type: section
Provision Reference: s 161
Character Range: 450259–452358

161  Substitution of conviction of alternative offence
 (1) Where in a review the reviewing authority quashes the conviction of a person of a service offence (in this section referred to as the original offence) but considers:
 (a) that the service tribunal could in the proceedings have found the person guilty of another offence, being:
 (i) a service offence that is an alternative offence, within the meaning of section 142, in relation to the original offence; or
 (ii) a service offence with which the person was charged in the alternative and in respect of which the service tribunal did not record a finding; and
 (b) that the service tribunal, by reason of the finding of the service tribunal finding that the person was guilty of the original offence, must have been satisfied beyond reasonable doubt of facts that prove that the person was guilty of the other offence;
the reviewing authority may substitute for the conviction of the original offence a conviction of the other offence.
 (2) Where under subsection (1) a reviewing authority substitutes for the conviction of the original offence a conviction of another service offence, the reviewing authority may take such action in relation to the convicted person as could have been taken under Part IV by the service tribunal that convicted the convicted person of the original offence if that service tribunal had convicted him or her of that other service offence, but the reviewing authority:
 (a) shall not impose a punishment for that other service offence or make a reparation order with respect to that other service offence unless a punishment was imposed for the original offence or a reparation order was made with respect to the original offence, as the case may be; and
 (b) shall not impose a punishment for that other service offence that is more severe than the punishment that was imposed for the original offence and shall not make a reparation order with respect to that other service offence that is for an amount that exceeds the amount of the reparation order that was made with respect to the original offence.