Recording a conviction
For an adult that appears before the court and pleads guilty to an offence, unless they are sentenced to imprisonment, the Presiding Judicial Officer has discretion as to whether a conviction is recorded or not.
The factors the Court must have regard to when determining whether to record a conviction are contained in section 12 of the Penalties and Sentences Act 1992 (Qld). They include:
- 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; or
- Chances of finding employment
Each case will be determined on its own facts which is why it is important you engage a criminal lawyer to represent you in court and make oral submissions focused on this issue. Character references are generally helpful in formulating those submissions, particularly if they can speak to any impact a conviction being recorded would have on current or future employment prospects. Any previous convictions, even where no conviction was recorded, are also a relevant consideration.
If no conviction was recorded, do I still have a criminal record?
Even if a conviction is not recorded, you have still been convicted of the offence to which you have pleaded guilty, or been found guilty, and it will be recorded on your criminal history. For most employers or other interested parties who request a criminal history check, if you have had no conviction recorded by the court, you are able to declare you have no criminal history. You need to carefully consider the wording of the question when asked and seek legal advice if you are unsure.
Do I have to tell someone I have a criminal record if no conviction was recorded by the court?
However, in certain situations, including applying for some employment, applying for a working visa overseas, applying for a weapons licence or applying for certain insurances, they may ask questions along the lines of “have you have been charged with a criminal offence?” or “Have you ever been convicted of a criminal offence, whether or not the conviction was recorded?”. You will be required to answer yes to each of those questions even if no conviction was recorded by the court.
If you are employed in a profession that is governed by a regulatory body, such as Nurses, Doctors, Lawyers and Taxi Drivers, you may have an obligation to report to that Professional Regulatory body that you have been charged and/or convicted of any offence. They each have different rules about what must be reported, and when it must be reported, so it is important you obtain early legal advice if you think you are in that situation.
If you are applying for a blue card to work with children, you are required to disclose all details of any offence you have been charged with. They will have regard to information supplied in relation to charges even if you were ultimately found not guilty. They will also have regard to information supplied in relation to any applications for a domestic violence order where you are named as the respondent.
For traffic offences such as drink driving and unlicensed driving, they do not result in a criminal conviction and will only appear on a traffic history. Those convictions may still be relevant to certain types of employment, such as taxi drivers, and when applying for work visa for some countries so it is important to consider what, if any, impact that will have on you and whether submissions need to be made to attempt to avoid that.
There are different considerations that apply to young people being dealt with under the Youth Justice Act (1991) Qld.
This post contains general advice only and is not intended as legal advice.