It is often assumed that when a court or jury, in the course of a prosecution, determines that an accused has committed the offence charged, a conviction inevitably results.  But this is not always the case.  In fact, it is open to Australian courts, in certain circumstances, to make a finding of guilt, but record no conviction.

This was not the case under common law, where generally a conviction was automatically recorded upon a finding of guilt (though Freiberg records that the relationship between guilt, conviction and sentence are far from clear at common law).1

Sentencing law in Australia is now codified.  In Victoria, s7 Sentencing Act 1991 provides that some sentences may be imposed with or without conviction.  Relevantly for our purposes, they include a fine: s7(1)(f).  Section 8 of that Act explains the consequences of not recording a conviction:

Conviction or non-conviction

(1)     In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including—

(a)     the nature of the offence; and

(b)     the character and past history of the offender; and

(c)     the impact of the recording of a conviction on the offender‘s economic or social well-being or on his or her employment prospects.

(2)     Except as otherwise provided by this or any other Act, a finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose.

(3)     A finding of guilt without the recording of a conviction

(a)     does not prevent a court from making any other order that it is authorised to make in consequence of the finding by this or any other Act;

(b)     has the same effect as if one had been recorded for the purpose of—

(i)     appeals against sentence; or

(ii)     proceedings for variation or contravention of sentence; or

(iii)     proceedings against the offender for a subsequent offence; or

(iv)     subsequent proceedings against the offender for the same offence.

At the Commonwealth level, however, non-recording of conviction is only available to a sentencing court that considers the offences were trivial, and intends also to discharge the offender.2  So, it would not be possible, for example, to fine an offender without recording a conviction, though that is what the Victorian legislation allows.

  1. See, Freiberg, Fox & Freiburg’s Sentencing (Lawbook Co, 3rd ed, 2014) [1.250]
  2. See: s19B Crimes Act 1914 (Cth) and also, the NSW Bench Book discussion at 16-020