This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
No Conviction Recorded
In Queensland a court can make an order under section 12 of the Penalties and Sentences Act 1992 to not record a conviction. If a person has been found guilty and a sentence has been imposed for an offence, section 12 provides the court with the discretion to not record a conviction.
If a court exercises its discretion to not record a conviction, an offender can lawfully state that they do not have any criminal convictions. However, there are exceptions to a court’s discretion. For example, if you have been sentenced to a term of imprisonment, the discretion will not apply and a magistrate or judge must impose the recording of a conviction.
The court is required to take into account all of the circumstances of the individual’s case before making its determination. The following factors are to be considered:
The Nature of The Offence
The discretion to not record a conviction is more commonly exercised for minor offences rather than indictable offences. The court will take into account what kind of offence has been committed and any other relevant circumstances that impact the severity of the offending, such as aggravated circumstances.
If the court exercises its discretion to not record a conviction, another form of penalty will be imposed. For example, a fine, community service order or good behaviour bond.
Character and Age
The Act provides for the court to take into consideration an offender’s character and age. It is common practice to produce evidence that attests to your good character, such as a character reference from an employer, close friend or family member.
Economic, Social Wellbeing and Employment
The Act provides that a court must factor in the detriment a conviction could have on your economic, social wellbeing or employment. However, the court will require evidence to support the submission. This could include a reference from your employer, evidence of travel restrictions or an employment position’s criteria outlining the requirement to disclose convictions.
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