Findings of Guilt Without Conviction (Qld)
When a court finds a person guilty of a criminal offence it must make a decision as to the appropriate penalty to impose. It must also make a decision as to whether or not to record a conviction for the offence. This page deals with findings of guilt without conviction in Queensland.
Legislation
Under section 12 of the Penalties and Sentences Act 1992, a court has a discretion as to whether or not to impose a conviction. In deciding whether to record a conviction, a court may consider:
- the nature of the offence
- the age and character of the offender
- the impact a conviction will have on the offender’s economic or social wellbeing or chances of finding employment
When a court does not record a conviction in relation to an offence, this does not stop the court from making any other order it may make because of the finding of guilt. This means that a court may exercise its discretion not to record a conviction regardless of the sentencing orders that it imposes.
Character
A court is most like to exercise its discretion in a case where the offence is minor and the defendant is a person of otherwise good character with limited or no criminal history. If the accused is a young person, the court is especially likely to order no conviction be recorded in recognition or the reality that a young person may make a mistake that is unlikely to be repeated and not reflective of their general character and patterns of behaviour.
Nature of the offence
A court is most likely to order a non-conviction if the offence is an objectively minor one that does not have a significant impact on victims or on the general community. The court will take into account the circumstances of the offence and any aggravating or mitigating factors.
A court is much more likely to order a non-conviction in relation to a summary offence than an indictable offence. It is much more likely to order a non-conviction for a non-violence offence than for a violent offence.
Wellbeing and employment
The Act provides that a court may take into account the impact of a conviction on the accused’s employment and wellbeing. However, to do this, it will required supporting material. This may include letters from employers, evidence of travel restrictions or the criteria for employment in particular positions.
Arguing for a non-conviction
If you are facing sentencing for offences and want to ask the court not to record a conviction, you should provide as much material in support of a non-conviction as you can. This may include:
- character references from people who know you and can vouch for your good character (such as employers or teachers);
- material outlining the requirements of your employment position, or employment positions you are likely to seek in the future
- medical documents such as psychological reports (if appropriate).
Effect of a non-conviction
If a person is found guilty of an offence but the court does not impose a conviction, the person is not obliged to disclose the finding of guilt. This means that when they are asked (for example, by a potential employer) if they have any criminal conviction, they are entitled to answer ‘No’. If they are giving evidence in court or in an affidavit, they are permitted to state that they do not have any criminal convictions.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.