CRIMINAL CONVICTIONS QUEENSLAND

Author: Justin Craven, Brisbane Criminal Lawyer

If you plead guilty or the Court finds you guilty of a criminal offence, the court will sentence you.  Besides imposing a penalty, the Magistrate or Judge will often need to decide if they record a conviction.

Being sentenced for a criminal offence means you have been convicted of the offence, but it does not mean a conviction is recorded. Depending on the penalty, this will determine if the court has a discretion to not record a conviction.

Penalties where a conviction is automatically recorded include intensive correction orders, suspended sentences and terms of imprisonment.

Penalties where the Court has a discretion to not record a conviction include a good behaviour bond, fine, probation or community service order.

What law in Queensland determines if the Court has a discretion to not record a conviction?

Section 12 of the Penalties and Sentences Act 1992 (Qld) is the law that tells Magistrates and Judges what they must consider in deciding whether or not to record a conviction.

What does section 12 of the Penalties and Sentences Act 1992 (Qld) say?

Section 12(2) Penalties and Sentences Act 1992 (Qld) says:

“In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—

(a) the nature of the offence; and

(b) the offender’s character and age; and

(c) the impact that recording a conviction will have on the offender’s—

(i) economic or social wellbeing; or

(ii) chances of finding employment.”

What does section 12(2) of the Penalties and Sentences Act 1992 (Qld) mean?

• The Magistrate or Judge has a discretion in deciding if they record a conviction. This means it is not automatic, they get to decide if one is recorded.

In deciding if a conviction should or should not be recorded, the Magistrate or Judge must consider:

• All the circumstances of the case (i.e. everything about the case).

• The nature of the offence (how serious was the conduct of the offender for the type of offence committed when compared to other persons who come before the Court). If the offence is considered by the Court to be serious, then it is more likely a conviction will be recorded. Things that may be relevant include:

• Was violence used? If so, to what extent?

• If there was an exploitation or abuse of trust.

• If there was any financial loss to victims, and if so the extent of the financial loss.

• The offender’s character. Section 11 of the Penalties and Sentences Act 1992 (Qld) says:

“Matters to be considered in determining offender’s character

In determining the character of an offender, a court may consider—

(a)the number, seriousness, date, relevance and nature of any previous convictions of the offender; and

(b)any significant contributions made to the community by the offender; and

(c)such other matters as the court considers are relevant.”

Things that may be relevant include: –

♦ Does the person have a criminal history? If so, has any convictions been recorded? Has the person been sentenced for similar offences in the past?

♦ What do other people say about the person? This may be in the form of character references given to the Court at the person’s sentence hearing.

♦ Has the person contributed to the community in anyway (e.g. volunteer work)?

♦ Has the person taken any steps towards rehabilitation in relation to their offending?

♦ The offender’s age (are they young or old).

♦ The impact the recording of a conviction will have on the offender’s economic or social wellbeing; or chances of finding employment.

Some people may lose their job if they had a conviction recorded for a criminal offence. Some people may be looking for a job and a conviction may obstruct their ability to get a job.

Do you need to be able to point to specific employment opportunities that would be lost if a conviction was recorded? The answer is “no” and his Honour Justice Keane in R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] ACQ 467 at paragraph 43 helps on this point where he stated:

“One complaint that is advanced by the appellant is that there was no specific identification of any employment option open to any of the respondents which might be hampered by the recording of a conviction. But the existence of a criminal record is, as a general rule, likely to impair a person’s employment prospects, and the sound exercise of the discretion conferred by s 12 of the Act has never been said to require the identification of specific employment opportunities which will be lost to an offender if a conviction is recorded. While a specific employment opportunity or opportunities should usually be identified if the discretion is to be exercised in favour of an offender, it is not an essential requirement. Such a strict requirement would not, in my respectful opinion, sit well with the discretionary nature of the decision to be made under s 12, nor with the express reference in s 12(2)(c) to “the impact that recording a conviction will have on the offender’s chances of finding employment” (emphasis added). In this latter regard, s 12(2)(c) does not refer to the offender’s prospects of obtaining employment with a particular employer or even in a particular field of endeavour.”

If no conviction is recorded, what does this mean?

If the Court does not record a conviction, this means you can generally deny having a conviction for the offence. However, there are exceptions to this rule. If you are asked questions about having a criminal history/record and you are unsure about what you are being asked you should get legal advice. If you are not sure about what you are being asked, you should get legal advice.

If no conviction is recorded, will I have a criminal history?

Yes. Even if no conviction is recorded, you will still have a criminal history. The offence you are sentenced for will be entered in your criminal history, but it will say no conviction was recorded.