Avoid a Criminal Conviction for Drink or Drug Driving in Qld
In the state of Queensland when it comes to criminal offences then by general rule of thumb Courts will generally be obliged to record a criminal conviction against an offender.
A criminal conviction recorded on a persons history can often lead to significant problems either immediately or later on down the track with respect to their ability to work and travel.
We often get clients who contact us extremely concerned about receiving a criminal conviction against their name. Many of our clients contact us in relation to lower level crimes such as drink driving, drug driving, unlicensed driving, minor drug possession or common assault charges and they want to know if there is any way that they can have their case pleaded to the Court to try and avoid having a criminal convictions recorded against their name.
The short answer is YES.
The legislation in Queensland specifically under Section 12 of the Penalties and Sentences Act 1992 QLD provides the court with discretion to NOT record a criminal conviction against a person upon a finding of guilt.
Where a person has been charged and pleaded guilty or runs a defended hearing and is found guilty of a particular offence which is considered A relatively low level crime such as a summary offence dealt with in the Magistrates Court in Queensland then they have a far better case to plead for a no conviction especially if it is their first offence.
In contrast if a person has been charged with a family serious criminal offence and date or they have a criminal background where they had previously been convicted of criminal offences then it certainly makes the case a lot harder to play for a no conviction under section 12 in Queens land.
So let's take a look at what the legislation says under section 12 of the crime sentence and procedure act:
Penalties and Sentences Act 1992 - SECT 12
12 Court to consider whether or not to record conviction 12 Court to consider whether or not to record conviction
(1) A court may exercise a discretion to record or not record a conviction as provided by this Act.
(2) In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—
(a) the nature of the offence; and
(b) the offender's character and age; and
(c) the impact that recording a conviction will have on the offender's—
(i) economic or social wellbeing; or
(ii) chances of finding employment.
(3) Except as otherwise expressly provided by this or another Act—
(a) a conviction without recording the conviction is taken not to be a conviction for any purpose; and
(b) the conviction must not be entered in any records except—
(i) in the records of the court before which the offender was convicted; and
(ii) in the offender's criminal history but only for the purposes of subsection (4)(b).
(3A) Despite subsection (3)(b), the conviction may be entered in a record kept by a department, a prosecuting authority or the offender's legal representative if it is necessary for the legitimate performance of the functions of the department, prosecuting authority or legal representative.
(4) A conviction without the recording of a conviction—
(a) does not stop a court from making any other order that it may make under this or another Act because of the conviction; and
(b) has the same result as if a conviction had been recorded for the purposes of—
(i) appeals against sentence; and
(ii) proceedings for variation or contravention of sentence; and
(iii) proceedings against the offender for a subsequent offence; and
(iv) subsequent proceedings against the offender for the same offence.
(5) If the offender is convicted of a subsequent offence, the court sentencing the offender may disregard a conviction that was ordered not to be recorded but which, under subsection (3)(b)(ii), is entered in the offender's criminal history.
(a) a court—
(i) convicts an offender of an offence; and
(ii) does not record a conviction; and
(iii) makes a probation order or community service order for the offender; and
(b) the offender is subsequently dealt with by a court for the same offence in any way in which it could deal with the offender if the offender had just been convicted by or before it of the offence;
the conviction for the offence must be recorded by the second court.
(7) Despite subsection (6), the second court is not required to record the conviction for the offence if—
(a) the offender is the subject of a community service order or probation order; and
(b) the reason the court is dealing with the offender for the same offence is because the offender has applied for a revocation of the community service order or probation order; and
(c) the offender has not breached the community service order or probation order.
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