Does a Fine give me a Criminal Record?

If you plead guilty or are found guilty of a criminal offence in NSW, you will receive a conviction on your criminal record.

Criminal offences include such things as assaults and drug supplies, but they also include a range of traffic offences such as drink driving, negligent driving, driving whilst suspended or disqualified, and speeding by more than 45km/h.

For all such offences, you will get a criminal record even if you just receive a small fine in court.

The one exception is where the court makes an order under a section 10 dismissal or conditional release order of the Crimes (Sentencing Procedure) Act, which is commonly known as ‘getting a section 10’.

This is the best outcome you can achieve if you plead guilty, or are found guilty, in court.

It means that you will avoid a criminal conviction, as well as avoiding any other kind of penalty, including a licence disqualification or a fine.

For many people, the consequences of receiving a conviction are far more significant than a fine or other penalty – it can lead to reduced career opportunities or loss of employment, which can have devastating consequences for defendants and their families.

No middle ground

The law in NSW does not allow magistrates or judges to impose fines or licence disqualifications upon adults without also giving them criminal convictions.

This means, for example, that if a person gets a $200 fine for drug possession, he or she will also get a criminal record. This can have serious implications for their present or future job prospects.

The situation for traffic offences is even more complicated. Drink driving offences, for example, come with a mandatory period of licence disqualification.

For instance, the ‘minimum’ licence disqualification period for a mid-range drink driving offence is 6 months (for a first offender).

This means that if a person is convicted, the magistrate must take them off the road for at least 6 months – which can have serious implications. The magistrate is not allowed to impose a shorter disqualification period, or to impose a ‘work licence’ (which don’t exist in NSW) or to give them a fine-only.

The only way for the magistrate to avoid the above situations is to impose a ‘non conviction order’ – which means no conviction, no fine and no licence disqualification.

Although ‘non conviction orders’ may come with good behaviour bonds, magistrates will often feel that awarding a section 10 dismissal or conditional release order is too lenient in the circumstances.

But the law in NSW leaves magistrates with ‘no middle ground’ – they may need to choose between a penalty that they feel is far too harsh (eg criminal conviction and lengthy disqualification) and one they feel is way too lenient (eg a no conviction, no fine and no disqualification at all through non conviction orders).

It is easy to see how this dilemma can lead to unfair outcomes.

Wouldn’t it be better for magistrates to have more choices? For example, to have the option of imposing a large fine instead of a criminal record?

Queensland: A better way

Queensland magistrates have that very option – to issue fines without recording convictions.

Under section 12 of the Penalties and Sentences Act 1992 (QLD), a court may exercise discretion when it comes to recording a conviction.

There are exceptions to this rule: a court must record a conviction if a person is sent to prison, and a court cannot record a conviction if a good behaviour bond or recognisance is imposed.

But in other situations, the court has the discretion to impose a fine without a conviction.

When making that decision, the court must consider the following factors:

• The natures of the offence;
• The age and character of the defendant;
• The impact that a conviction will have on the offenders economic or social well-being or chances of finding employment;

This means that a person can still face consequences for their actions, such as a fine, but can at the same time maintain a clean criminal record. Indeed, it is common in Queensland for a fine to be issued, but not criminal record, meaning that a person who breaks the law doesn’t get off scot-free, but is not penalised too harshly, either.

Are you facing criminal or traffic charges and haven’t spoken to a lawyer? If your reputation or career is at stake, you should obtain expert legal advice from an experienced criminal lawyer as soon as possible to ensure you get the best possible result.