If you are facing an upcoming sentencing proceeding, there are a range of possible penalties that might be imposed on you. One of these options is a non-conviction order. Contrary to what it sounds like, a non-conviction order does not mean that your offending will simply disappear from your criminal record. A non-conviction order allows the court to find you guilty of committing a criminal offence, without formally imposing a conviction on you.

The offence will still show up on your criminal record and the associated penalty will be written as a “non-conviction order.”

Section 17 of the Crimes (Sentencing) Act 2005 (“the Sentencing Act”)

In the ACT, a non-conviction order can be imposed by the court under section 17 of the Sentencing Act. Importantly, the magistrate or judge is entitled to exercise their own discretion as to whether they believe a non-conviction order is appropriate in all the circumstances of your case. When considering whether or not to impose a non-conviction order, the magistrate or judge will consider the following factors:

• The offender’s character, antecedents, age, health and mental condition;
• The seriousness of the offence;
• Any extenuating circumstances in which the offences was committed; and
• Anything else the court considers relevant.

The more serious the offence is, the less likely you are to receive a non-conviction order. Additionally, if you have a lengthy or repetitive criminal history, the court is more likely to hold the opinion that a non-conviction order would be too lenient.

It is important to understand that a non-conviction order is an “exceptional outcome” and will only be granted where the court believes it is appropriate in your case. In most cases, the consequences of criminal offending require a conviction to be recorded. Therefore, your circumstances must generally be very good to justify a non-conviction order. For a non-conviction order to be granted, the following circumstances might help:

• Minimal or no criminal history
• Mitigating circumstances surrounding the offending (factors which reduce the seriousness of your offending)
• Particularly negative consequences of imposing a conviction (for example, where there is evidence that a conviction would result in you losing your job or being unable to support any dependents)
• Proof that you are otherwise a person of good character
• Demonstrating significant remorse for your actions

Considering the decision to grant a non-conviction order is a discretionary power, whether you are actually sentenced to a non-conviction order may depend on which magistrate or judge you get and how serious the magistrate or judge perceives your offending to be on the day. Some magistrates and judges may be more sympathetic towards your circumstances and might feel that a non-conviction order is a sufficient penalty, whereas others may take the view that the seriousness of your offending demands a conviction be imposed.

When imposing a non-conviction order, the court may also impose the condition that you comply with a good behaviour order. However, as you are not formally convicted of the offence, the good behaviour order cannot include a condition that you complete community service.

So why is a non-conviction order helpful?

For some offences, there are automatic consequences that flow from a conviction. For example, in many driving offences, the recording of a conviction will result in a minimum licence disqualification period. A non-conviction order will mean that these penalties are not automatically imposed on you.

Additionally, a non-conviction order looks better on your criminal record and indicates your offending was not very serious.

If you have upcoming sentencing proceedings, you may be eligible for a non-conviction order. If you need advice, contact one of our experienced criminal lawyers at info@codalaw.com.au.