Written by John Sutton
August 16, 2016
In recent days, for reasons which are presently unclear, there has been some media attention given to the ability for courts in New South Wales to dispose of an offender without imposing a conviction against them. As the cynic might expect, this attention is not favourable and is accompanied by the shrill suggestion that there should be no way to avoid a conviction for contraventions of the law.
A conviction is, in essence, a record against a person’s name that they have committed an offence against our law. In the ordinary course of things, convictions are permanent and in some cases they are matters which must be declared (for example a person seeking admission as a solicitor in any Australian jurisdiction is required to declare any convictions on their record).
While it is fundamental to our system of civilised society that people who transgress our laws should face consequences, in some case – indeed more than you might think – the impact of a conviction can be entirely disproportionate to the underlying offence.
Take, as an example, a recent matter which proceeded in Queensland. A 30 year veteran of the Defence Force, recently returned from war and suffering from a debilitating mental health issue had taken to drinking large amounts of alcohol every evening after work – that being, unfortunately, the best way they had found to get to sleep. After an unremarkable night of drinking, and an unremarkable night of sleep (broken by the usual nightmares), this person had their morning breakfast, had a shower, and jumped in the car to go to work. It was a great surprise to this person (though no surprise to those of us who regularly practice in the area) that upon being stopped at an early morning RBT they were over the limit – .058. The consequence of a drink driving conviction for a military member is severe – summary termination is not unusual. The court was persuaded, in that case, not to record a conviction against the person. I defy any reasonable minded citizen to suggest that it would have been a proportionate penalty in that case if the conviction had been recorded, almost certainly forfeiting the client’s military career.
The law in almost all Australian jurisdictions, not just New South Wales, recognises the potentially disproportionate effect of a conviction and so most sentencing legislation allows for the disposal of a matter without a permanent record, in the form of a conviction, being made.
It is my suggestion in this article that the New South Wales non-conviction regime is not a unique ‘loophole’ and nor is it particularly lenient on offenders. I suggest that it is, in fact, quite a bit harsher than in some other places, in particular Queensland.
It turns out that it is quite a bit harder to avoid a conviction in New South Wales than many other places – contrary to the apparently popular view.
The way in which a person can avoid a conviction under New South Wales sentencing law is a disposal pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999. That provision puts some firm restrictions on when a court can, and can’t, exercise a discretion not to proceed to convict a person.
In short shrift, in order to avoid a conviction in New South Wales, a person must persuade a court that it should dismiss the charge altogether or impose a good behaviour bond because it would be inexpedient to impose a penalty (other than that nominal penalty).
This is quite a high bar (and is not dissimilar to the test to be applied in avoiding a conviction for a Federal offence under the Commonwealth Crimes Act – for those who are interested to know). The threshold in Queensland, while not necessarily lower, is different and it allows for a court to decline to record a conviction against a person regardless of almost any other penalty imposed on them.
The way in which a person can avoid a conviction under Queensland sentencing law is to persuade a court, pursuant to section 12 of the Penalties and Sentences Act 1992 that, despite any other penalty imposed, it should not record a conviction against an offender.
A conviction without recording the conviction is not a conviction for any purpose (except the limited purposes set out in that section), and it must not be entered into any record other than the courts record (and Police records for use in future court proceedings).
The discretion to not record a conviction is live in every sentence passed by a Court, except a sentence of imprisonment. For example, a court can be satisfied that a period of probation or community service is warranted in the circumstances of a case but, perhaps because of features personal to the offender, the conviction should not be recorded.
In this way, the Queensland regime allows for a wider range of non-conviction disposals than New South Wales and, in particular, it does not require any finding that the charge should be dismissed or that it is inexpedient to impose a penalty.
Perhaps, to put it flippantly, if the media consider the New South Wales too lenient – whatever would they say about Queensland?