NON– CONVICTION SENTENCES ‘NOT RECORDING A CONVICTION’ AS A SENTENCING OPTION FINAL REPORT No. 3 August 2014 NON– CONVICTION SENTENCES ‘NOT RECORDING A CONVICTION’ AS A SENTENCING OPTION FINAL REPORT No. 3 August 2014 Information on the Sentencing Advisory Council The Sentencing Advisory About this Council was established Final Advice in June 2010 by the then Attorney-General and The reference to the This Advice considers the Minister for Justice, the Sentencing Advisory implication for an offender Hon. Lara Giddings MP. The Council was made by the of a court not recording a Council was established, in then Attorney-General conviction following a finding part, as an advisory body and Minister for Justice, the of guilt, and specifically to the Attorney-General. Hon. Brian Wightman MP in whether a fine should be able Its other functions are to October 2013. to be imposed if a conviction bridge the gap between is not recorded. the community, the courts This Advice makes and the Government by recommendation to the As part of the preparation for informing, educating and Acknowledgments Attorney-General in relation this Advice, the Sentencing advising on sentencing issues to the sentencing option of Advisory Council provided in Tasmania. At the time this The Council would like to ‘not recording a conviction’. a copy of the paper to the reference was concluded, thank all those who provided Under the Sentencing Act Chief Justice of the Supreme the Council members were information in relation to this 1997 (Tas) and the Youth Court of Tasmania, the Professor Arie Freiberg reference, in particular the Justice Act 1997 (Tas), there Chief Magistrate, and the AM (Chair), Professor Kate Chief Justice of the Supreme are several sanctions that can Commissioner of Police (Tas). Warner, Dr Jeremy Prichard, Court of Tasmania, the Chief be imposed by judges and The feedback received has Mr Phil Wilkinson (until 2nd Magistrate, Tasmania Police, magistrates without recording been incorporated in this June 2014), Ms Kim Baumeler, the Monetary Penalties a conviction. However, there Advice. Mr Norman Reaburn, Mr Enforcement Unit, and the is no power to impose a fine Chris Gunson, Professor Rob Department of Justice. This on an adult offender without This Advice reflects the law as White, Ms Sue Robertson Final Advice was written by recording a conviction. at November 2013. and Ms Linda Mason. Dr Rebecca Bradfield. ISBN: 978-0-9873492-6-2 (print) ISBN: 978-0-9873492-7-9 (ebook) Copyright © State of Tasmania – Department of Justice, 2014. This work is copyright; however, material from this publication may be copied and published by state or federal government agencies without permission of the Department on the condition that the meaning of the material is not altered and the Tasmanian Department of Justice is acknowledged as the source of the material. Any other persons or bodies wishing to use material from this publication must seek permission. Contents Executive Summary v List of Recommendations x 1. Introduction 1 1.1 Background to this paper 1 1.2 Terms of reference 1 1.3 Overview of the Tasmanian sentencing legislation 2 1.4 Key terminology: Conviction, guilt and sentence 3 1.4.1 Guilt 3 1.4.2 Conviction 4 1.4.3 Sentence 5 1.5 Scope of the paper 6 2. Conviction within the modern Tasmanian criminal justice system 7 2.1 Conviction or non-conviction under the Sentencing Act 1997 (Tas) and the Youth Justice Act (Tas) 7 2.2 What is the significance of aconviction? 10 2.3 Exercise of a court’s discretion whether or not to record a conviction 10 2.3.1 The nature and circumstances of the offence 13 2.3.2 Antecedents and character 14 2.3.3 The impact on economic or social well-being or employment 14 2.4 Spent conviction schemes 15 2.5 Criminal history record 16 2.5.1 Who can access a person’s criminal record held by the police? 17 2.5.2 What information is disclosed? 18 3. Consequences of recording a conviction or a finding of guilt 19 3.1 The legislative framework 19 3.1.1 Finding of guilt under the Sentencing Act 1997 (Tas): What orders can be made and in what circumstances is a finding of guilt equated with a conviction? 20 3.1.2 Finding of guilt under the Youth Justice Act 1997(Tas): What orders can be made and in what circumstances is a finding of guilt equated with a conviction? 21 3.2 Prior criminality 22 3.2.1 The exercise of the sentencing discretion for a subsequent offence 22 3.2.2 Statutory consequences of prior offending 23 3.3 Disqualification 25 3.4 Occupational and employment rights 26 3.4.1 Government bodies and appointments 26 3.4.2 Licensing and registration 27 3.4.3 Other consequences for employment 29 3.5 Loss of licences to drive 33 3.5.1 Mandatory disqualification 34 3.5.2 Discretionary disqualification 35 3.6 Sex offender registration 35 3.7 Retention of forensic samples 36 3.8 Political rights 36 3.9 Citizenship 37 3.10 Travel restrictions 38 3.11 Capacity to serve on jury and testify 39 3.12 Orders in addition to sentence: restitution, compensation and costs 40 3.13 Appeals and proceedings for variation or breach of sentence 42 3.14 Autrefois convict 42 3.15 Forfeiture and confiscation 42 Contents iii 3.16 Other court orders 45 3.17 Other provisions 45 3.18 Summary 46 4. The future of non-conviction orders 48 4.1 Should non-conviction orders continue to be a sentencing option under section 7 of the Sentencing Act 1997 (Tas)? 48 4.1.1 Justification orf non-conviction sentences 48 4.1.2 What are the criticisms of non-conviction sentences? 50 4.1.3 Options and recommendations 53 4.2 What should be the legal consequences of a finding of guilt where a conviction is not recorded? 54 4.2.1 Occupational and employment rights 55 4.2.2 Sex offender registration 71 4.2.3 Travel restrictions 72 4.2.4 Increased penalty provisions for subsequent offending 72 4.2.5 Licence disqualification and emeritd points 73 4.2.6 Restitution, compensation and costs 76 4.2.7 Forfeiture and confiscation 77 4.2.8 Appeal against sentence 79 4.2.9 Other court orders 80 4.2.10 Other provisions 81 4.3 Should section 7 of the Sentencing Act 1997 (Tas) be amended to allow a fine to be imposed without a conviction being recorded? 82 4.3.1 Arguments in favour 82 4.3.2 Arguments against 84 4.3.3 Discussion and recommendations 85 4.3.4 Consequences of removing the reference to deemed convictions in the Monetary Penalties Enforcement Act 2005 (Tas), section 20. 89 References 94 Appendix 1 Comments on passing sentence, Tasmanian Supreme Court 2008 – 1 November 2013: Non-conviction sentences. 98 Appendix 2 Prior Criminality 104 Appendix 3 Disqualification 115 Appendix 4 Loss of licences to drive 163 Appendix 5 Political rights 167 Appendix 6 Orders for compensation, restitution and costs 168 Appendix 7 Forfeiture of property 176 Appendix 8 Other court orders 184 Appendix 9 Other provisions 186 Appendix 10 Findings of guilt without conviction and spent conviction legislation in Australia 200 iv Non-conviction sentences: ‘Not recording a conviction’ as a sentencing option – Final Report No. 3 Executive Summary TERMS OF REFERENCE be amended to allow for a fine to be imposed without a conviction being recorded? If the On 22 October 2013, the then Attorney-General amendment is made how will it relate to section and Minister for Justice, the Hon. Brian Wightman MP, 20 of the Monetary Penalties Enforcement Act 2005 wrote to the Sentencing Advisory Council asking it for (Tas) where an offender is ‘taken to be convicted’ advice on the implications for an offender of a court not of an offence if an infringement notice is paid or recording a conviction following a finding of guilt, and if no election to have the matter decided by the specifically whether a fine should be able to be imposed court is made within 28 days? if a conviction is not recorded. In particular, the Attorney-General requested the PURPOSES OF AN ORDER OF Council to consider: CONVICTION IN THE MODERN • What purpose or purposes does the CRIMINAL JUSTICE SYSTEM pronouncement/recording of an order of conviction serve in the modern criminal justice Although the public conception of the criminal justice system? system is primarily centred on guilt (whether by trial or plea) and sentence, the foundations of sentencing are • To what extent has the concept of ‘conviction’ built upon three concepts: guilt, conviction and sentence. been kept separate from the concept of ‘guilt’ both Conviction has traditionally been viewed as an important in statute and at common law in Tasmania? safeguard of the rights of the accused person as it was • Should the two concepts remain separate? considered to provide the basis for the court’s power • Is there a need to clarify any legislative to exercise its sentencing powers. While the traditional provisions to maintain this distinction? sequential approach (guilt, conviction, sentence) has been weakened by the adoption of a statutory • What is the actual effect of the exercise by a Court sentencing regime in Tasmania that provides that the of the sentencing option to ‘not record a conviction’ recording of a conviction is, in some cases, optional or on an offender’s economic or social wellbeing prohibited, it is the Council’s view that conviction still has or employment prospects in light of the fact that an important role in the modern criminal justice system.