How to avoid a criminal conviction
What is a conviction?
When you see a reference to a “conviction” it can mean one of two things:
• That you have been found guilty of an offence. Being “convicted” of an offence means that a court has found you guilty, or you have pleaded guilty; or
• That the court has recorded a conviction. A “conviction” is an entry on your criminal record which may be disclosed in certain circumstances to other people and organisations.
This can be confusing because people (and Acts) often use these two meanings of “conviction” interchangeably. For the purposes of this paper, a “conviction” means a recorded conviction.
Usually, if you are found guilty of an offence, a conviction will automatically be recorded. However, in some cases the court will not record a conviction.
How to avoid a criminal conviction as an Adult Offender
If you are found guilty of an offence committed as an adult (i.e. aged 18 or over) the court will automatically consider a conviction for that offence. However, in special circumstances the court may deal with an adult offender under Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Under section 10, the court may dismiss the charge without a conviction.
Alternatively, it may put the offender on a good behaviour bond, or order that the person participate in an intervention program (eg a traffic offender program). No conviction will be recorded as long as the offender has complied with the bond or the intervention plan.
Section 10 would often be used for someone who has committed a trivial offence, has pleaded guilty and doesn’t have a prior criminal record. The offender’s age (very young or very old) and health (especially mental health) may also influence the court’s decision to deal with a matter under section 10.
A matter that has been dealt with under section 10 does not form part of a person’s criminal record, but may be disclosed to a court when it is sentencing with the person for further offences (see s16(1) Criminal Records Act 1991(NSW)).
For more information and case studies for clients we have achieved a Section 10 for, go to:
How to avoid a criminal conviction as a Child
A Children’s Court magistrate has no power to record a conviction against a person under 16 years of age. The magistrate can choose whether or not to record a conviction against a person aged 16 or over. This is true regardless of what penalty the young person gets.
A child of any age who is being dealt with for a more serious offence by a higher court (eg the District Court) may have a conviction recorded against them (see section 14 of the Children (Criminal Proceedings) Act 1987 (NSW)).
Juvenile matters where there has been a finding of guilt, but no conviction, may still be taken into account by a court when sentencing the person for further offences. However, there are some restrictions. An adult court cannot take these matters into account if the person has been out of trouble for two years immediately before committing the adult offence (Children (Criminal Proceedings) Act 1987 (NSW) s15).
In any event, the Children’s Court is usually more lenient than the adult Local Court, and will very often make a finding of guilty, but not record a conviction against the young person’s record.
On-the-spot fines (infringement notices)
When you are given an infringement notice, no conviction is recorded against you (whether you pay the fine or not).
However, if you elect to take the matter to court, and the court finds you guilty (or you plead guilty) a conviction may be recorded.
If you get an infringement notice for a traffic offence (eg. speeding, not displaying p-plates), this will show up on your RTA traffic record. Although they do not amount to convictions, those matters can be taken into account by a court when sentencing you for a traffic offence.
It is important that you contact an experienced Criminal Lawyer should you or someone you know find yourself facing any court matter.
For a free consultation on your initial visit, contact us at LY Lawyers on 1300 595 299.