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The Sentencing Process: How to enhance your prospects of avoiding a criminal conviction

Updated: Feb 19


What is a criminal conviction?


The case of Maxwell v The Queen (1996) 184 CLR, provides some guidance. Their Honours (McHugh & Dawson JJ) observed the following:

“The review of the authorities which we have made satisfies us that a plea of guilty does not if its own force constitutes a conviction. In our opinion it amounts to no more than a solemn confession of the ingredients of the crime alleged. A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused”.


While a finding of guilt is a pre-condition to the recording of a conviction, a Court has the discretion not to record a conviction upon finding an accused guilty (either through a guilty plea or following the determination of a contested hearing). Section 8 of the Sentencing Act 1991 (Vic) provides:

(1) In exercising its discretion whether to record a conviction, a court must have regard to all the circumstances of the case including—

(a) the nature of the offence; and

(b) the character and history of the offender; and

(c) 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) 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.

(3) A finding of guilt without the recording of a conviction—

(a) 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;

(b) has the same effect as if one had been recorded for the purpose of—

(i) appeals against sentence; or

(ii) proceedings for variation or contravention of sentence; or

(iii) proceedings against the offender for a subsequent offence; or

(iv) subsequent proceedings against the offender for the same offence.


The Court has a discretion not to record a conviction where the matters referred to under s. 8(1)(a)-(c) weigh in favour of leniency. Conversely, the circumstances of the offence, and criminality involved, as well as a person’s criminal history may support the recording of a conviction, and thus the Court’s recording of a conviction against an individual for their offending conveys the Court’s condemnation of their conduct. A conviction is a form of social sanction for criminal behaviour and its purpose to deter the individual and more broadly, the community from further offending.


Impact of a criminal conviction


Having a criminal conviction can adversely impact a person in various ways. The concern for most people in the community is the impact of a conviction upon a person’s current employment, or their future employment prospects. For some professions a conviction or even a finding of guilt will require a disclosure to a relevant supervisory agency and depending upon the seriousness of the offence they may be prevented from continuing their employment.


A conviction can have an adverse impact upon licenses that are regulated by Victoria Police such as firearm and private security licenses.

For young people a conviction is especially problematic as employers will often require a job applicant to submit to a criminal history check. The results of which may be used to shortlist applicants.


The ability to travel overseas may also be made more difficult, depending upon the destination Country and the offences for which a conviction was recorded.


Is a without conviction the same thing as not having a criminal record

No. A without conviction outcome is not the same as not having a criminal history. Although there is a proposal for the introduction of spent court outcomes, at present a finding of guilt will create a court record which will remain for 10 years (for adults). That said, it is obviously better that any outcome for a criminal case be recorded without rather than with conviction.

Not all convictions are the same. A conviction for a minor traffic case (exceeds speed limit, careless driving, even drink driving) will not have the same impact as a conviction for a serious dishonesty, drug, or sexual offence.


Note the law pertaining to when a conviction may be considered spent is under review. Read our article on the proposed spent conviction legislation.


How to enhance the prospects of avoiding a conviction


It is important to address each of the factors under s. 8 of the Sentencing Act and provide supporting evidence as to why the Court ought to exercise their discretion not to record a conviction.


In addressing the nature of the offence, the Court would need to be made aware of any unusual features of the offence, underlying circumstances, or matters personal to the accused, that that mitigate the offence.


If a person has never been to Court before this needs to be brought to the Court’s attention, or where the previous history was very dated, and of a different nature to the current offence. An accused’s previous good character is an appropriate submission in favour of a without conviction outcome.


It is also appropriate to provide the Court with some evidence as to how a conviction will impact upon a person’s economic, social well-being or employment prospects. The Court cannot consider this aspect to section 8 of the Sentencing Act unless there is a submission that squarely addresses it and makes the connection clear.

In summary, it is important to note that a submission under section 8 to a Court is an exercise in persuasion, and so the submissions should be accompanied with supporting evidence.


Character evidence can be adduced to the court either through a written letter or by calling oral evidence from a referee. Sometimes it will be necessary to tender an expert report (from a psychologist or psychiatrist) as it relates to features of the case or matters person to the accused.


Written by Shaun Pascoe, Director, Pascoe Criminal Law.


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