If you have been charged with an offence, you may be fearful of having a criminal conviction recorded against your name. It is a common concern when clients are proceeding through the criminal justice system, particularly for reasons such as employment and travel.
However, in some cases it is possible to avoid having a criminal conviction recorded.
Does A Conviction Always Have To Be Recorded?
In Queensland, a court has the discretionary power to make an order under section 12 of the Penalties and Sentences Act 1992 (“PSA“) to not record a criminal conviction against an offender. There are exceptions to the power and circumstances which mandatorily attract a conviction, which are determined by their legislative maximum penalties. For example, if you have pleaded guilty to an offence and you have been sentenced to a term of imprisonment, a judge cannot apply his/her discretion and they must record a conviction.
The court’s discretionary power to not record a criminal conviction is not generally exercised for indictable offences rather minor offences, for example, a wilful damage charge.
In deciding whether or not to record a conviction, the court will be required to take into account a variety of factors and features in all the offending and personal circumstances of the individual.
The following factors are to be taking into account as per the PSA:
1. The Nature Of The Offending
The court must weigh up whether it is appropriate to record a conviction, taking into account what kind of offence has been committed and relevant circumstances. The circumstances of the incident can potentially have an impact on the severity of the offending or present an aggravated feature. All of these factors must be considered before determining whether or not to record a conviction.
2. Character & Age Of Offender
The next relevant consideration under the PSA is an offender’s character and age. In order to attest to an offender’s good character, it is beneficial to provide the court with supporting material. This can be done in various ways such as a character reference from an employer or a letter of support from a community or volunteer group that you have been a part of. The goal is to demonstrate your contribution to society in a positive manner.
The court will also take into account an offender’s age. This can be weighed on more heavily for younger offenders, where immaturity can provide context to certain offending. However, this is not an excuse for any wrong doing.
3. Economic, Social Wellbeing & Employment
The last consideration for the court to take into account is the detriment any criminal conviction would have on your present or future economic, social wellbeing and employment. This can be evidenced to the court by providing material supporting the proposition that you will lose your job or will be unable to obtain employment due to a criminal conviction.
For example, if you were before the court for your first common assault charge. You can provide the court with an explanation or supporting material as to how a criminal conviction would prevent you from applying for work in the military. Alternatively, you can provide evidence of how a criminal conviction would restrict your ability to travel for employment purposes.
Ultimately, a penalty will need to be imposed even if a court decides to not record a conviction. The court has a range of penalty options that could be appropriate depending on the type of offending and circumstances surrounding it. In Queensland, sentencing principles are based on the premise that punishment should be proportionate in all the circumstances.
How We Can Help
If you are concerned about the recording of a conviction, it is recommended you speak with our experienced criminal lawyers before your court date.
We are available to meet with you at any of our local offices (Brisbane, Gold Coast, Beenleigh, Cleveland and Jimboomba) or by telephone or video-conference.
This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.