13 Apr

Case Note – No Conviction Recorded

In Kemp v The Commissioner of Police [2021] QDC 30, Her Honour, Judge Loury QC DCJ, was required to consider whether a conviction should be recorded for an offence of Stealing. It was argued that the nature of the offence was such that the court at first instance should have exercised its discretion and ordered “no conviction recorded”


On 2 October 2019 the appellant was convicted at Richlands Magistrates Court for an offence of stealing. She was fined $400 and ordered to pay $15.06 in compensation. A conviction was recorded. 

The circumstances of the offence involved the appellant stealing fuel valued at $15.06. She went inside the store and said that she had forgotten her wallet and made arrangements to return the next day. When she did not return for two weeks a complaint was made to police. The appellant said, presumedly to the police upon being charged, that she was suffering from a deterioration in her mental health, that she was struggling with drug addiction and financial issues and that she had simply forgotten to return and pay for the fuel. She expressed remorse for her offending. 

The Applicant was 25 years of age at the time of the offence. She came before the Richlands Magistrates Court with no previous convictions.


The applicant sought leave to appeal against his sentence. She contended that the recording of a conviction rendered the sentence manifestly excessive. 


The appeal was successful

Her Honour, Judge Loury QC DCJ, found that the nature of the offence was not a callous drive off. The Applicant attended inside the store and made arrangements to pay the following day but did not do so. The amount of fuel she stole was not significant.


Whilst no material was placed before the Magistrate, the appellant was still a young woman, who had expressed remorse to the police for her offending. It has been accepted that there is at least some social prejudice which attaches to the recording of a conviction. That prejudice may result in the offender being continually punished in the future in a way not commensurate with the punishment which is just for the offending. It might also stand in the way of rehabilitation, particularly by making it difficult for an offender to obtain employment.

It could be accepted that the recording of a conviction for stealing would cause her some social prejudice and would impact on her chances of finding employment to such an extent that she would be continually punished in a way which was unjust when considered against the nature of the offence.

Kemp v The Commissioner of Police [2021] QDC 30, per Loury QC DCJ at [9]

Section 12 of the Penalties and Sentences Act 1992 requires only that the Court consider the impact that the recording of a conviction will have on the offender’s chances of finding employment. The Applicant was still a young woman with no criminal history, accordingly the very existence of a criminal record is likely to impair a person’s employment prospects.


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