Conviction and non-conviction

What is guilty without a conviction?

Many clients are often confused about the difference between a conviction and a non-conviction.

After a plea of guilty is entered or if there is a finding of guilt following evidence being called, the magistrate or judge will then proceed to sentence the offender.

The sentence handed down will either be made with conviction or without conviction. A sentence made without conviction is a good result. 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’.

Usually, a non-conviction is only available for offences on the lower end of the scale and to offenders who have no prior criminal history. A conviction will usually be handed down if the offending is of a more serious nature or if there are any aggravating factors to the offending. In practice, it is unlikely (but not impossible) that an offender will receive a non-conviction if they have previously been convicted of an offence.

What does it mean to have no conviction?

Whether a sentence is made with or without conviction, the offender will still have a criminal record. This is because a finding of guilt has been made against the offender.

For a non-conviction, 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 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, it is one of the most misunderstood concepts in the criminal law.

The Legislation:

s. 8 of the Sentencing Act – Conviction or non-conviction

  1. In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including—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.
    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.
  2. A finding of guilt without the recording of a conviction—
  3. 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;
    1. has the same effect as if one had been recorded for the purpose of—
      1. appeals against sentence; or
      2. proceedings for variation or contravention of sentence; or
      3. proceedings against the offender for a subsequent offence; or
      4. subsequent proceedings against the offender for the same offence.
How do I avoid a criminal record?
  1. Engage one of our criminal lawyers to have all charges struck out at a preliminary hearing, prior to evidence being called.
  2. Engage one of our criminal lawyers to plead not guilty on your behalf and to assist you in being found not guilty by a magistrate, judge or a jury depending on the nature of the charge. For more information on pleading not guilty in the Magistrates’ Court click on the above link.
  3. Engage one of our criminal lawyers to petition the informant to provide you a diversion recommendation. This can often be a tricky exercise. The first step is to obtain the recommendation, the next step is to convince a magistrate or judicial registrar to grant the diversion. For more information about how to avoid a criminal record by way of diversion click here.
    1. If you have been found guilty by a magistrate at first instance, engage our office to assist you in lodging an appeal to the County Court. You are always entitled to have a second chance (hearing De Novo) in the County Court when coming from the Magistrates’ Court. The only exception to this rule is if the matter relates to infringement warrants. Click here for running a not guilty conviction appeal in the County Court from the Magistrates’ Court.