The recording of a conviction carries with it serious consequences. These consequences can be long lasting and significant. A recorded conviction can see you excluded from particular occupations, denied visas for travel and affect your ability to obtain finance and insurance. In some cases the conviction must be disclosed for life. For this reason it is important that you seek legal advice if you are concerned about a conviction being recorded.
One of the concerns of the Court is that the recording of a conviction can be unduly prejudicial and oppressive. A conviction can adversely impact upon a person well into the future, rendering any penalty disproportionate to the alleged offence.
It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation, and it may be thought to be a reasonable tool that has been given to the courts to avoid undue oppression.R v Briese; ex parte Attorney-General  1 Qd R 487
Section 12 of the Penalties and Sentences Act (Qld) 1992, permits the Court to exercise its discretion to record or not record a conviction having regard to a multiple of non-exhaustive factors including:
- the nature of the offence;
- your character;
- your age; and
- the impact that recording a conviction will have on your economic or social wellbeing; or
- the impact that recording a conviction will have on your chances of finding employment.
It is clear that there are competing factors in the sentencing process and the Court is called upon to balance all of those features. Sentencing courts will be particular responsive to youthful first offenders who are able to demonstrate real prospects of rehabilitation.
In this regard, there can be no doubt that the encouragement of rehabilitation is one of the principal reasons for the existence of s 12 of the Act. The view that an order that the conviction not be recorded would be apt to encourage the rehabilitation of the respondents, and that the claims of rehabilitation were stronger than the need for denunciation or deterrence in this case was a view which was reasonably open to the learned sentencing judge.R v Cay, Gersch and Schell; ex parte A-G (Qld) (2005) 158 A Crim R 488
Effect of breaching a community based order
Section 12(6) of the Penalties and Sentences Act (Qld) 1992 mandates that were a person was sentenced to a community based order (probation and/or community service) and the person breaches that order then the Court MUST record a conviction as part of any re-sentence.
The Court maintains it’s discretion in section 12(7) where the Offender has applied for a renovation of the order. Accordingly, if you are unable to comply with the conditions of a community based order, it is imperative that you bring an Application to Revoke. The Court has no discretion, if the Department of Corrective Services brings the Application or takes breach action for non-compliance.
This website contains general information about legal matters. The information is not advice, and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.
For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.
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