Consequences of recording a criminal conviction

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The recording of a criminal conviction can be devastating. All too often lawyers will casually decline to make any meaningful submissions in relation to the recording of a conviction.

In doing so, they seem to have no real appreciation of the fact that the recording of a conviction can irretrievably alter their client’s legal rights, their legal capacities, and cause them significant social prejudice.

If you have a conviction recorded against you, it could make it impossible to travel to certain countries, it could preclude you from applying for certain jobs, it could mean that certain employers will not even consider your job application. A conviction could mean that you are precluded from setting up a business in a regulated industry, and it could even lead to a loss of self-confidence and ability to credibly interact with others in the community.

Section 12(1) of the Penalties and Sentences Act 1992 (Qld) confers a discretion upon a sentencing judicial officer to record a conviction or not.  Section 12(2) provides that, in exercising the discretion, the court “must have regard to all circumstances of the case” including the nature of the offence, the offender’s character and age, and the impact that recording a conviction will have on the offender’s economic or social wellbeing and chances of finding employment.

In a recent Court of Appeal decision R v ZB,[1] President Sofronoff considered the exercise of the discretion in some depth.  His Honour noted that:

“… in some cases the offence is so grave that it is right that the offender’s crime be noted officially as part of the community’s denunciation of the commission of the offence … In such ways the recording of a conviction is of benefit to the community.[2]”

Some obvious examples of offences so grave that a conviction must be recorded would be rape, sexual offending against children, grievous bodily harm, sophisticated fraud, and drug trafficking.

His Honour continued:

“The benefit is foregone because a sentencing judge has decided that, in the circumstances of the case, it is to the greater benefit of the community to afford the offender the privilege of non-disclosure.[3]”

The privilege of non-disclosure that His Honour refers to is the ability of an offender to go about their life without having to declare their offence to interested persons or organisations.

The essential question for a sentencing judge or magistrate is whether the community would be best served by knowing what an offender did, or whether the community would be best served by allowing an offender the opportunity to rehabilitate without the significant burdens that follow a recorded conviction.

When Courts are addressed in relation to those burdens the focus is often on the detrimental effects of a conviction upon employment, and an offender’s social wellbeing is forgotten about.  Quite wisely, certain members of the judiciary have given us some reminders in recent times.   

In NHR v The Commissioner of Police,[4] Loury QC DCJ found that the learned sentencing Magistrate had erred in not considering the effect upon the appellant’s social wellbeing in deciding to record a conviction.  Her Honour noted that the recording of a conviction could lead to a loss of self-confidence after the end of the criminal justice process, and therefore hamper rehabilitation, and therefore not benefit the community.[5]

In Poile v Queensland Police Service,[6] Fantin DCJ exercised discretion not to record a conviction in circumstances where, amongst other matters, the appellant worked in a small outback community and the recording of a conviction “would have an impact on his social wellbeing because of the social prejudice of a conviction in such a small community”.[7]

In a recent matter before the Supreme Court in Cairns, a mother with a fragile psychiatric makeup pleaded guilty to supplying her teenaged son with cannabis in a misguided effort to keep him at home in order to contain his misbehaviour.  The Court refrained from recording a conviction, noting that she would have to continue to deal with educators, agencies and carers in relation to her son’s behavioural issues.  The Court said that a recorded conviction might hamper the mother’s ability to continue to do this in a “credible way”.

If you have been charged with an offence and you are concerned that a conviction might be recorded, or if you have recently had a conviction recorded and you are concerned that it will adversely affect you, contact us for advice and representation. 

 


[1] [2021] QCA 9.

[2] Ibid [6]-[7].

[3] Ibid [9].

[4] [2021] QDC 67.

[5]Ibid [21].

[6] [2018] QDC 61.

[7]Ibid 5.


  1. Photo credit: Sora Shimazaki

This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact the Fisher Dore team.

 

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