What does ‘no conviction recorded’ really mean in Queensland?

Article by Cameron Browne

Having a criminal conviction on your record can have a prolonged and profound impact on your life that extends far beyond the punishment imposed by a court during a sentence. It can, in some circumstances, be used adversely against you in terms of employment, travel, loans, rental applications, and more. In some cases, it may not matter what the offence was, and having any criminal history whatsoever could result in an automatic denial or potential loss of opportunity.

For this reason, it is in your best interests that you seek a conviction not be recorded, even if you are convicted and punished for an offence.

What does the law say?

When is it available?

The Penalties and Sentences Act 1992 (Qld), under s 12, permits a court to choose not to record a conviction, at its own discretion.

The Act requires the court to consider all the circumstances of the case, and provides a non-exhaustive list that includes:

• the nature of the offence;
• your character and age;
• the impact that recording a conviction will have on your economic or social wellbeing,
• or chances of finding employment.

Hence, offences which are relatively lower in scale (as determined by their maximum penalties and other factors) would be more likely to receive an unrecorded conviction. Additionally, matters which go to your character that demonstrate your contribution to society such as your employment record, general history of obedience of the law, and the like, will be of benefit.

Younger offenders and more senior offenders without an extensive criminal history are generally viewed more favourably by courts in relation to not recording convictions. However, this is certainly not exclusive and we have acted for many clients who have received unrecorded convictions as a result of other reasons we put before the court. One of the factors the courts will give the heaviest weight to is the impact a recording of your conviction will have on your employment. It is a key principle of sentencing in Queensland that a punishment should be proportionate in all the circumstances, and hence courts, in imposing a punishment, would prefer that those convicted of offences would continue being productive members of society.

Effect of an order

Subsection 3 provides that unless otherwise provided under the Act or any other Act of Parliament, a non-recorded conviction is taken not to be a conviction for any purpose. Additionally, it states that the conviction must not be entered into any record except the records of the court sentencing the offender and your criminal history but only for the purpose of potential further court proceedings.

The effect of this section is, that unless another Act of Parliament requires you to disclose an unrecorded conviction, an unrecorded conviction will not have to be declared. However, this exception is extremely important, because if you make a mistake and do not make a disclosure when required to, you could be committing an offence and risk losing the potential benefit or opportunity you were seeking to gain. It is vital that you obtain legal advice whenever you have been asked to disclose your criminal record or similar questions.

Effect of breach of other orders

Subsections 6 and 7 also apply if the court orders a probation order or community service order as a penalty for the offence and does not record a conviction. If you are later found to be in breach of the probation or community service orders and are before a court for that breach, the court must then record a conviction if it chooses to revoke the original order and re-sentence you for the original offence. In other words, the non-recording of a conviction in combination with a community service order or probation order is a leniency afforded by the court to you, and in the event you are before the court for a breach of that initial leniency, it may not be afforded again.

Under s 152 of the Penalties and Sentences Act, if the court is imposing a sentence of imprisonment, even if the sentence is wholly suspended (e.g., no actual time served in jail), then the court must record a conviction.

When is a disclosure of an unrecorded conviction required under a relevant Act?

Occupational disclosure

It is not the case that disclosure is only required when dealing with government agencies.  A common occurrence requiring disclosure is where you work in an industry regulated by an administering body, or if you require a licence to operate. This encompasses a range of professions and vocations, each with their own empowering legislation that may or may not require the disclosure of unrecorded convictions.

Some examples of regulated industries include real estate agents, builders, carpenters, engineers, medical practitioners, lawyers, accountants and financial advisers. A detailed analysis of the relevant Act, Regulation or Rules is required to determine whether you are required to disclose an unrecorded conviction to your regulating authority.

Our disciplinary law blog, contains specific articles on a number of professions and occupations, with more to come.

Applications for foreign visas and other permits

Applicants are commonly asked to disclose their criminal history. Questions may include specifically the disclosure of convictions, non-recorded convictions, charges and traffic offences. It is important that you take legal advice before completing such applications.

Applications for insurance policies

Failure to properly respond to a question on an insurance policy application (written or verbal) may give the insurer the right to refuse cover. Again, you should seek legal advice.

Generally

If you are asked a question on a form which states something to the effect of “Have you ever been convicted of an offence, regardless of whether that conviction was recorded?”, then you should seek legal advice before answering. It is possible that another law allows the asker to consider unrecorded convictions, and answering incorrectly could result in further action against you. However, if the asker is not empowered by legislation, then by responding in the affirmative, you may be compromising your own position. Questions could also be framed differently, such as requesting whether you have ever been charged with an offence. The answer to this could be in the affirmative even if there was a no guilty verdict; hence a non-recorded conviction may still have to be disclosed.

Some case examples

Drug Supply Matter

Cameron Browne, Director of Potts Lawyers acted for a 19 year old charged with the supply of a schedule 1 drug, MDMA, commonly referred to as ecstasy. The offence itself was constructive in nature, meaning that he was not actually caught supplying the drugs, but rather was just caught in possession of them, and made admissions that he intended to supply them upon being arrested.

Despite this being a very serious offence which often carries a sentence of imprisonment, no sentence of imprisonment, actual or wholly suspended, was imposed and our client’s conviction was not recorded. This was an ideal result in the circumstances. Submissions made led to the court deciding not to record a conviction because of our client’s:

• age;
• his complete lack of criminal history;
• his upbringing and otherwise good behaviour;
• the character references he received from reputable members of the community;
• and the fact that he was completing training to become a carpenter, a regulated occupation which required the disclosure of recorded convictions.

 

Barnes v Commissioner of Police

It is extremely important in appropriate cases that your legal representative make detailed submissions as to why a conviction should not be recorded, and properly substantiate this. The matter of Barnes v Commissioner of Police [2014] QDC 184 concerned an appeal heard in the District Court against a sentence imposed in the Magistrates Court. The appellant was self-represented in the initial proceeding and in the absence of proper submissions the magistrate found:

The question of whether [the appellant] would suffer as a result of the regulatory bodies coming to know of this offence is mere speculation.… There has been no material put before the court as to how ASIC might react to this. There is no material put before the court to show how that organisation has reacted in similar circumstances; it’s all speculation. Having regard to your role in this [offence], the court was not at all persuaded that a conviction shouldn’t be recorded.

The matter concerned a 60 year old man with no previous criminal history. The District Court was satisfied that a recorded conviction, in Mr Barnes’ circumstances, would adversely impact his economic wellbeing beyond the scope of the $3,000 fine the court imposed as a punishment. As such, it set aside the initial sentence of a recorded conviction and substituted an unrecorded conviction.

 

Please note that this advice is for general background information only and is not intended as legal advice you can rely on. To obtain legal advice you can rely on you must contact a lawyer who can advise you on the basis of your personal circumstances.