A Penalty With or Without Conviction

Section 8 of the Sentencing Act 1991 (Vic) is relevant to the issue of whether you can get a penalty without conviction for any State criminal offence.

A conviction is often a form of punishment in itself, and represents a significant legal and social censure on the individual. Without conviction is intended to enable you to appear different from people who do get convictions.

You need to talk to lawyers who are experts in the field.

There are various sentencing options housed in the Sentencing Act 1991 (Vic), and the types of sentences available under the Victorian legislation are largely replicated under the Commonwealth sentencing legislation (The Crimes Act 1914).

In Victoria, with the exception of imprisonment (whether served immediately, partially, or wholly suspended), a sentencing Magistrate or Judge has a discretion as to whether to record a conviction or a without conviction.

For many people the issue of whether the Court imposes a conviction or non-conviction is the most important issue in their case. Without conviction often means they can keep their job.

A conviction can impact, most obviously, on employment, housing and travel. There are also a number of other penalties that are triggered by getting a conviction for a criminal offence.

A non-conviction can also impact on you but does so in a lesser way. Obviously if you contest charges and are found not guilty you will receive neither conviction nor non-conviction.

When a submission by your defence lawyer is made not to record a conviction, the Sentencing Judge or Magistrate will consider the content of section 8 of the Sentencing Act 1991 (Vic). The various considerations set out under that section are:

  1. the nature of the offence; and
  2. the character and past history of the offender; and
  3. the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects.

The first of those considerations concerns the gravity of the offending. Was it a serious charge? Were people hurt etc? The objective seriousness of the offending is an important consideration for the sentence.

For reasons that pertain to sentencing purposes of just punishment, denunciation and deterrence, a conviction is usually imposed for serious offending. The offence of intentionally cause serious injury (section 16 of the Crimes Act 1958 (Vic), which attracts a maximum of 20 years imprisonment will result in the recording of conviction and usually with a term of immediate imprisonment to be served.

The second consideration is as to what you are like as a person. Have you always worked? How have you contributed to the community etc? This is an important consideration because a person’s history, in the criminal justice system, can be indicative of previous good or bad character. An absence of prior offending suggests a person is of good character, and a defendant is entitled to refer to this fact in mitigating the penalty. It is always a good idea when pleading guilty to place material before the Court such as character references/testimonials, evidence of community involvement which demonstrates previous good character.

The third consideration under section 8 concerns the impact of a conviction upon your employment prospects.

It is very difficult to work in particular industries if a person has been convicted of a criminal offence. Your lawyer when arguing against the recording of a conviction, needs to persuade a Magistrate or Judge by reference to plea material (letter from employer etc.) that there will be a specific and detrimental impact of a conviction upon current employment or career prospects.

There are a number of strategies that we would use to help you get a non-conviction outcome. For example, when dealing with a serious motor vehicle offence (dangerous driving, reckless conduct endangering life/serious injury), we would suggest programs that you could undergo a course such as the Road Trauma Awareness Course. Where the consumption of alcohol and or drugs have contributed to the commission of a particular offence we would recommend that you attend formal counselling for those issues. We would also suggest what documents a Magistrate would want to see to help them make their decision.

Avoiding a conviction and getting a non-conviction is a very important issue for people who work or who have led otherwise blameless lives. We all know that minor charges can reflect something that was a momentary lapse of judgment or are not indicative of a person lacking good character.

For a practical illustration of these principles please refer to our case studies. Each case study describes the particular court hearing (plea of guilty, contested hearing, trial), the particular criminal offences that were the subject of the hearing, and the court outcome.

Below are some of the actual cases we’ve defended in courts that successfully led to a non-conviction: