When a person is charged with a criminal offence and they have entered a plea of guilty to the charge, the standard procedure is that the Court records a criminal conviction.
When the sentencing Court records a conviction on a person’s history, there is no doubt that the recording of a conviction will have an immediate impact.
The recording of a conviction can have an impact on your current and prospective employment, and can also affect your ability to travel overseas.
The question that now remains is whether or not the same considerations apply when the Court is considering not recording a conviction on a person’s traffic history.
This article goes into the relevant case law on this issue.
The Law
Section 12 of the Penalties and Sentences Act in Queensland outlines what the court must consider when deciding on whether or not it should record a criminal conviction. These considerations are:-
- The nature of the offence; and
- The offender's character and age; and
- The impact that recording a conviction will have on the offender's economic or social well-being; or chances of finding employment.
The key thing to remember is that the decision to record a conviction or not remains at the discretion of the sentencing judge.
Recording of Traffic Convictions
One of the most common questions that we get asked by our clients when facing criminal or traffic charges, is whether the court can consider not recording a conviction against them. The short answer is yes.
When it comes to low-level traffic charges, such as drink driving, drug driving, and unlicensed driving the question of whether or not a criminal conviction will be recorded is often not an issue given that the matter is a traffic offence.
However, it has often been the case in low-level traffic charges that a conviction will always be recorded on a person’s traffic history, however, the recent decisions by the District Court of Queensland would disagree with this.
Recent Cases:
Wilson v Commissioner of Police [2022] QDC 15 & Clinton v Commissioner of Police [2022] QDC 2022
A recent appeal to the District Court in Cairns was found in favour of the appellant, in challenging the view that the Court should not have recorded a conviction on the appellant’s traffic history for a charge of driving whilst under the influence of liquor 0.151 (DUI).
Facts
The facts of the case were that the appellant, a 23-year-old refrigeration apprentice was charged with two charges. The first offence was possession of dangerous drugs, and secondly, driving whilst under the influence of liquor with a blood alcohol reading of 0.151%. The Appellant in this case had a very minor criminal and traffic history, with no prior convictions to allege.
The sentencing Magistrate, in this case, sentenced the defendant to 18 months probation, imposed a fine of $800, and disqualified the appellant from holding or obtaining a driver's license for a period of 8 months. The sentencing Magistrate recorded a conviction on his traffic history but did not record a criminal conviction.
The Appellant sought to appeal his sentence to the District Court of Queensland on the following grounds:-
- The sentencing Magistrate made an error in recording a conviction for the traffic offence
- The sentencing Magistrate did not take the plea of guilty into account
- The aggregate sentencing totality of all the offences was manifestly excessive
Finding
The Court found in favour of the appellant and granted the appeal. The conviction was not recorded on the traffic history, and the probation period was reduced to 12 months and the license disqualification was reduced to 6 months.
The key consideration, in this case, was in relation to the recording of a conviction on a person’s traffic history, and what exactly the legal test is. His Honour Judge Morzone KC DCJ stated in paragraph 14:-
[14] “…this Court (The District Court) has dispelled the legal fiction of distinguishing a traffic offence conviction to a conviction recorded for any other type of criminal offence. The recording of a conviction is both a legal and social censure, which results in a diminution of a defendant’s character in the community”
His Honour ultimately found in paragraphs [16] and [17] that the recording of a conviction on the traffic history would have an effect on his social well-being in public as well as significantly negatively impact his employment prospects.
Clinton v Commissioner of Police [2022] QDC 2022
The decision of Wilson v Commissioner of Police was recently referred to in another successful appeal in the Southport District Court. The case was Clinton v Commissioner of Police [2022] QDC 2022.
In this case, the appellant was an 18 ear old man with no criminal history, who was sentenced for an offence of Evading Police. He was sentenced to a fine of $7,000 and disqualified from driving for a mandatory minimum period of two years. A traffic conviction was recorded against him.
His Honour Judge Holliday KC DCJ agreed with the decision of Wilson v Commissioner of Police [2022] QDC 15 and the comments in paragraph [14]. The appeal was successful, the traffic conviction was removed, and the case reaffirmed the position on the Courts recording traffic convictions.
What does this mean?
The impact of these cases is significant in that they confirm that the sentencing Court must take into account the same considerations in not recording a criminal conviction when the Court is looking at recording a traffic conviction. What is also clear is that the Court cannot take a view to dismissing the argument to record a traffic conviction, simply because the charge is a traffic offence.