On finding of guilt or a plea of guilty, the Court will sentence the offender. The sentencing process can be complicated as there are many and at times competing factors that guide the process. In NSW, the purposes of sentencing are legislated and are as follow:
- Punishment of the offender,
- Preventing crime by deterring the offender and others,
- Protecting the community,
- Promoting rehabilitation of the offender,
- Denouncing the conduct of the offender and holding them accountable, and
- To recognise the harm done to the victim and community.
This guide prepared by Criminal Law Specialists Sydney | AMA Legal, will provide a overview of what courts consider and how to increase your chances to secure a non-conviction in NSW, exploring key legal principles, and practical steps to enhance your chances.
Non-Conviction Sentences
A non-conviction order is a legal outcome where the court decides not to record a conviction against the offender. This can have significant implications for the individual’s future, particularly regarding employment, obtaining certain licences, and overall social standing.
According to Criminal Law Specialists Sydney | AMA Legal, the most common non-conviction orders are:
- Section 10(1)(a) Dismissal: The court finds the person guilty or accepts a guilty plea but dismisses the charge without recording a conviction.
- Section 10(1)(b) Conditional Release Order (CRO): The court imposes conditions that the offender must comply with for a specified period of up to 2 years, without recording a conviction.
Factors the Court Considers
When determining whether the Court should exercise discretion and not record a conviction, the Courts consider:
1.The offender’s character, criminal history, age, health and mental condition
An offender’s prior good character entitles them to leniency in most sentencing proceedings. The Court also considers the offender’s age, heath and mental condition. Youth is a relevant factor on sentence as the Courts have long held that emotional maturity and impulse control develop progressively during adolescence and early adulthood and are not fully developed until the early to mid-20’s meaning young offenders have not developed an appreciation of the full consequences of their actions.
2. The trivial nature of the offence
In assessing the seriousness of an offence, the Courts consider all aggravating factors which make the offence more serious and all mitigating factors which decrease the seriousness of the offence. While any offence before the Court is inherently not trivial, there are serious and less serious offences. Some offences are too serious and will usually not warrant exercise of discretion to not record a conviction such as high range drink driving offence.
3. The circumstances in which the offence was committed
The Court can take into account the circumstances surrounding the offence. For example a person goes uses a stolen credit card and pays one of his overdue bills. The purpose of using the credit card does not excuse the offending but the Court can consider the reasons why the offender did so.
4. Any other matter the Court thinks proper
Every case is sentenced on its own facts and material presented to the Court and your Criminal Lawyers Sydney can advice you on what material to be presented on sentence.
It should be noted that an offender need not satisfy the Court of all the factors above for the Court to exercise its discretion in not recording a conviction.
Practical Steps to Increase Your Chances of a Non-Conviction
Increasing your chances of a non-conviction outcome requires careful preparation and a strategic approach. Here are some practical steps to enhance your chances:
1. Legal Representation
Engaging a skilled criminal defence lawyer is crucial. A lawyer can provide expert advice and effectively present your arguments in Court.
2. Character References
Gather character references from reputable individuals who can attest to your good character and the unlikelihood of reoffending. These references should highlight their knowledge of the Court proceedings, your positive attributes, contributions to the community, and any mitigating circumstances.
3. Demonstrate Remorse and Responsibility
Express genuine remorse for your actions and take responsibility for your behaviour. This can be done through a written apology to the Court and through your conduct during legal proceedings such as early guilty pleas.
4. Rehabilitation Efforts
Proactively engage in rehabilitation programs or counselling. Demonstrating a commitment to addressing any underlying issues shows the Court that you are taking steps to prevent future offending.
The Court, in exercising discretion to not record a conviction, extends to the offender great leniency and as much should be appreciated by offenders. The Court may not extend such leniency to offenders are repeat offenders so the opportunity should be utilised to address all underlying issue to lower any risks of reoffending.
If you have been charged with criminal offences or traffic offences, contact Sydney Criminal Law Specialists | AMA Legal on (02) 8610 3764.
