What is guilty without a conviction?
Many clients in the past have often been confused about the difference between a conviction and a non-conviction in Victoria. That is because previously if you had been to court and pleaded guilty and no conviction was recorded, it was the case that you would still have a criminal record, that is a recordable outcome against your name.
Now with the recent introduction of the Spent Conviction Bill in 2021, the tide has turned and the difference between whether a conviction is recorded or not recorded has real meaning. That is because to receive a non-conviction or ultimately not have a conviction recorded against your name, now, due to the introduction of the Spent Conviction legislation may mean that you will avoid a criminal record if the magistrate or judge is persuaded not to record a conviction in relation to your matter. To read more broadly on how to avoid a criminal record, click the link for a complete breakdown of the only ways that you can avoid a criminal record. To understand more fully about how to achieve a non-conviction outcome at court, read on.
How to get no conviction, on a plea of guilty
Engage one of our experienced criminal lawyers to prepare a detailed submission to the court, ensuring that the principles set out in section 8 of the Sentencing Act 1991 are properly considered;
- Our lawyers will consider how we can minimise the nature of the criminal conduct, this might involve taking a better look at the evidence and inviting the prosecution to amend the summary of facts or by providing context to the magistrate to demonstrate, what on the face of it, might seem very serious, has a more innocuous intent.
- Our lawyers will address the character and past criminal history by attempting to distinguish any similar offending that might appear in the criminal history, making submissions in relation to any rehabilitative steps taken by the accused and assist in preparing character references to assist in verifying good character.
- Our lawyers will address how a conviction might impact an accused both socially and economically. Submissions in terms of employment prospects is always very important and should be considered in some detail prior to entering any plea of guilty.
- Finally our lawyers will consider anything else that might tip the balance in inviting a magistrate or judge to not record a conviction. What many lawyers don’t understand is, that the definition provided in section 8 is not exhaustive, it does list the above matters as being relevant when a conviction is a live issue, but these are not the only things that a magistrate or judge can take into account.
What does it mean to have no conviction recorded?
The sentence handed down will either be made with conviction or without conviction. A sentence made without conviction is a good result. If the spent conviction legislation does not apply, it means that if that same person is later asked if they have ever been convicted of an offence (e.g. by an employer or on a visa application), they can answer ‘no’.
If no conviction is recorded and the spent conviction legislation does apply, that is the matter does not relate to a ‘serious violence offence‘ or a ‘sexual offence‘ then the conviction will be ‘spent’ and not disclosable on a record check generally, and an employer will not be able to ask about it (although it should be noted there are some exceptions).
Usually, a non-conviction is available for offences on the lower end of the scale and to offenders who have either none or a small amount prior criminal history, but it should be noted that on a well-prepared plea, anything is possible.
A conviction will usually be handed down if the offending is very serious, but it should be noted there are cases as serious as armed robbery that have received a non-conviction disposition.
In practice, depending on the age of the conviction, it is unlikely (but not impossible) that an offender will receive a non-conviction if they have previously been convicted of an offence.
Whether a sentence is made with or without conviction, the offender will still have a criminal record, unless the sentence satisfied the requirements of the ‘spent conviction’ legislation. This is because a finding of guilt has been made against the offender.
For a non-conviction where the spent conviction legislation does not apply, a police record check will still show that the offender was found guilty of the particular offence but that it was made without conviction.
It is a common misconception that a non-conviction will automatically mean that you don’t get a criminal record. A non-conviction in relation to a criminal matter will always result in a criminal record unless the spent conviction legislation applies. It is fair to say that conviction vs no conviction is one of the most misunderstood concepts in the criminal law. That is partially because to be convicted on a plea of not guilty can often be interchanged with a finding of guilt where no conviction is recorded, which definitely confuses the issue.
Circumstances where it is open to the Court to not impose a conviction;
- An offender on a plea of guilty in the Magistrates Court can only receive a non-conviction in relation to a sentence that is not a gaol sentence. A defendant cannot receive a non-conviction disposition where an immediate goal sentence is imposed. See this article relating to the Victorian sentencing scale where it defines what sentences are open to receive a non-conviction. Any sentence up to a Community Correction Order is eligible to receive no conviction.
- In relation to the Children’s Court, any sentence up to a Youth Attendance Order can receive a non-conviction. See this article that explains the sentencing scale in relation to the Childrens’ Court and identifies whether a conviction is open or not in relation to each sentencing disposition.
If you have to attend Court, don’t go it alone. Whether you are convicted or not could actually change your life in terms of your employment prospects and your ability to travel. Contact our office and consult with one of our experienced criminal lawyers so the very best submission can be put forward in relation to your matter.
- 8 of the Sentencing Act – Conviction or non-conviction
- In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including—
- the nature of the offence; and
- the character and past history of the offender; and
- the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects.
- Except as otherwise provided by this or any other Act, a finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose.
- A finding of guilt without the recording of a conviction—
- does not prevent a court from making any other order that it is authorised to make in consequence of the finding by this or any other Act;
- has the same effect as if one had been recorded for the purpose of—
- appeals against sentence; or
- proceedings for variation or contravention of sentence; or
- proceedings against the offender for a subsequent offence; or
- subsequent proceedings against the offender for the same offence.
Click here for further information on how to avoid a criminal record or call one of our offices located a the top of the page under “office locations”.