Penalty Without Conviction
In South Australia, courts have discretion to impose a penalty or sentence without recording a conviction pursuant to Section 24 of the Sentencing Act 2017 (SA). This allows them to consider the circumstances of the individual case, and to decline to record a conviction (if appropriate) to allow an offender to avoid the adverse consequences of a conviction.
The Sentencing Act and case law sets out factors that are relevant to the exercise of the court’s discretion which may include if the court is persuaded that the defendant is unlikely to re-offend and there are good reasons, such as the offence being trifling or other extenuating circumstances, to refrain from recording a conviction.
Talon Legal has a proven track record of securing non-conviction orders and without conviction outcomes for individuals throughout South Australia, in even the most serious cases. We will fight to protect your future from the stain and social stigma of a conviction and have a deep understanding of Section 24 “no-conviction” applications and the relevant case law.
Why Avoiding a Conviction Matters
Recording a conviction can permanently affect:
| Area | Impact |
|---|---|
| Employment | Mandatory disclosure on job applications; loss of professional licences. |
| Travel & Visas | Refusal or delay for visas to USA, Canada, EU & Asia-Pacific. |
| Insurance & Finance | Higher premiums and loan rejections. |
| Reputation | Ongoing stigma in community and online records. |
Courts created the penalty-without-conviction power precisely to spare offenders from unwarranted economic or social detriment that would otherwise flow from a recorded conviction.
A Section 24 non-conviction order prevents these downstream effects while still allowing the court to denounce wrongdoing through a fine or community service.
Get a Free Case Review
Get a Free Case Review or call (08) 7094 2021, if you, or someone you know is charged with traffic or criminal offence in South Australia, and are worried about the consequences of a conviction. Your future may depend on it.
Consequences of Having a Criminal Record in Australia
Negatively impact employment opportunities:
- Employers may view a criminal record as a sign of unreliability or risk, particularly for roles requiring trust or responsibility.
- For example, in MacGregor v Police (1995) 66 SASR 269, the court noted that the recording of a conviction acts as notification to potential employers and others who may have a valid reason for knowing the character of the offender.
- In cases where the offence is trifling or the individual has good character, courts may exercise discretion not to record a conviction to avoid disproportionate harm to employment prospects.
- Recent employer-attitude studies cited by Monash University found that ex-offenders rank below every other disadvantaged cohort except severe psychiatric disability when managers weigh hiring risk; most concerns centre on reliability and perceived customer reaction.
Negatively impact international travel:
- Some countries may deny entry to individuals with criminal convictions, particularly for serious offences.
- The court in Brookes v Police [2014] SASC 22 acknowledged the uncertainty surrounding how foreign officials might react to a criminal record when considering visa applications or entry permits.
- In immigration contexts, a criminal record can lead to visa cancellation or deportation. For example, under Section 501 of the Migration Act 1958 (Cth), individuals with a “substantial criminal record” may fail the character test, leading to visa cancellation.
Negative social and personal consequences:
- A criminal record can lead to stigma and social exclusion. It may affect relationships, community standing, and the ability to participate in certain activities, such as volunteering or working with vulnerable groups.
- The court in Police v Watson [2016] SASC 92 recognized the potential unforeseen impacts of a conviction on employment, voluntary work, and other aspects of life, and opted not to record a conviction to mitigate these consequences.
Legal and significant financial consequences:
- A criminal record can result in increased penalties for future offences.
- Courts may consider prior convictions as aggravating factors, leading to harsher sentences.
- Financial consequences may include fines, court fees, and compensation orders. Additionally, individuals may face difficulties in obtaining loans or insurance due to perceived risk.
Rehabilitation and future opportunities:
- A criminal record can hinder rehabilitation efforts. In Yardley v Betts (1979) 22 SASR 108, the court emphasized the importance of rehabilitation and noted that a conviction could impair an individual’s ability to reintegrate into society and avoid reoffending.
- Courts may exercise discretion to avoid recording a conviction in cases where it could turn an offender towards a criminal way of life, thereby impairing community protection.
Public interest and community protection:
- The recording of a conviction serves as a deterrent and marks the community’s condemnation of the offender’s conduct.
- It also provides transparency, allowing the public to be aware of an individual’s criminal history.
- However, courts may weigh the public interest against the individual’s circumstances to determine whether recording a conviction is justified.
Why Non-Conviction Orders Still Matter
- In 2023–24, there were 515,460 defendants sentenced across all Criminal Courts in Australia.
- 97% or 447,122 cases resulted in a guilty outcome.
- Up to 2.8 million criminal-record checks were processed nationally in 2010.
- Victorian police policy, until recently, released every finding of guilt (convicted or not), effectively nullifying the court’s mercy.
- Long-term UK data show employment cuts recidivism by 33-50 % – reinforcing the public-safety rationale for Section 24.
Legal Framework: Section 24 Sentencing Act 2017 (SA)
“If a court proposes to impose a fine or community service, and finds (a) the defendant is unlikely to re-offend, and (b) good reason exists having regard to character, age, trifling nature of offence or any extenuating circumstance, it may impose the penalty without recording a conviction.” — s 24(1)
Key Take-aways:
- Discretionary, not automatic.
- Applies only where the intended penalty is fine and/or community service.
- Court must weigh both individual justice and public interest.
When Is the Court’s Discretion Engaged?
- Guilty plea or finding of guilt for summary offences or a minor indictable offence.
- Court intends a non-custodial penalty (fine, community service, or both).
- Evidence establishes low risk of re-offending.
- Good reason exists not to record a conviction.
If those preconditions are satisfied, the discretion is enlivened; however, that discretion is not necessarily required to be exercised (see McIntyre v Police [2023] SASC 46).
Factors the Court Considers
Likelihood of Re-Offending
- Clean record or isolated lapse.
- Positive urine tests, abstinence certificates.
- Ongoing counselling or rehabilitation.
- Labour-market data: ABS figures show approximately 490 000 Australians were found guilty in a single year (2011-12), and academic surveys estimate 1 in 6 adults now carries a criminal record, numbers that make employment-impact arguments empirically credible.
Personal Circumstances
- Character & Antecedents: References, community contributions.
- Age: Youth or mature first offender.
- Health: Mental-health reports (e.g., PTSD, ASD).
- Employment/Education: Risk of job loss or deregistration.
Nature of Offence
- Trifling or technical breaches (e.g., inadvertent licensing lapse).
- Victim impact limited or nil.
- Regulatory offences where culpability is low.
Extenuating Circumstances
- Provocation, necessity, or duress.
- Genuine remorse, restitution or apology.
Public Interest & Deterrence
Courts balance personal hardship against the need for transparency and general deterrence (Police v Sherratt; R v Shannon).
Maximising Your Success
| Stage | Action | Purpose |
|---|---|---|
| Before Court | Engage an accredited criminal lawyer early. | Build mitigation from day one. |
| Collect character references (template provided on request). | Proof of good character. | |
| Employment & licensing impact statement explaining specific registrations, visas or security clearances that would be lost if a conviction were recorded. | ||
| Undertake voluntary counselling / courses (anger, alcohol, traffic). | Demonstrates rehabilitation. | |
| Repay restitution or compensation promptly. | Shows responsibility. | |
| Guilty Plea Hearing | Tender written legal submissions citing Section 24 criteria. | Focus the Magistrate on discretion. |
| Provide expert psych reports if mental health relevant. | Explains contributory factors. | |
| Highlight employment & visa impacts (letters from employer). | Quantifies hardship. | |
| Post-Hearing | Comply fully with any bond or community service. | Avoids subsequent breach proceedings. |
Step-by-Step Road-map
- Evidence in Mitigation – Obtain character references, letters of support, medical histories, secure the attendance of character witnesses and family support to provide evidence and /or provide supporting documents (including references from employers, letter from psychologist and other community supports).
- Amend Prosecution Facts – Negotiate an agreed statement of facts to remove irrelevant, prejudicial or uncharged offending (refer to The Queen v De Simoni (1981) 147 CLR 383 which prohibits a sentencing judge from having regard to the absence of a fact which would render an offender guilty of a more serious offence where that fact is not an element of the more serious offence).
- Entering a Guilty Plea – Attend Court and enter a plea of guilty. If you enter a plea of guilty within four (4) weeks of the first hearing, you may be eligible for up to a 40% sentencing discount (for summary and minor indictable matters in the Magistrates Court of South Australia).
- Defence Submissions – Oral address and written brief citing the relevant penalties, sentencing factors and cases applying Section 24.
- Judicial Consideration – After hearing submissions from the defence and prosecution, the presiding Magistrate will usually provide their Ex Tempore reasons. In the Magistrates Court, this usually occurs immediately after the defence finishes making submissions. The Magistrate will consider your personal circumstances, the circumstance of the offence, the public interest in recording a conviction, any materials you provide to the court, the prosecution’s attitude toward penalty and the primary and secondary purposes of sentencing (among other things).
- Outcome: Non-conviction order: fine / community service + $278 Victims Levy (no conviction recorded); or conviction recorded: penalty plus criminal record.
How Courts Apply Section 24
| Case | Principle | Result |
|---|---|---|
| R v Stubberfield | Discretion available even for serious assault where future prejudice is exceptional. | No conviction. |
| McIntyre v Police (2023) | Court must be satisfied both limbs met; firearm offences usually defeat “good reason”. | Conviction upheld. |
| Virgin v Police (2018) | Compensation + minor nature → penalty without conviction. | No conviction. |
| Police v Varma | Non-conviction order does not negate statutory licence disqualification. | Disqualification still imposed. |
| R v Shannon (2020) | Balancing seriousness vs hardship; jail avoided but conviction recorded. | Conviction. |
| R v Wooldridge | Public deterrence outweighs personal disadvantage in dishonesty offences. | Conviction. |
Courts tend to lean towards recording convictions for violence, dishonesty, or repeat offending, and towards non-convictions for first-time, low-level, or so called “victimless” offences.
The academic commentary stresses the discretion protects offenders from ‘unwarranted economic or social detriment’ where punishment can be achieved without lifelong stigma.
Consequences Even Without a Conviction
- Licence Disqualifications – (drink-drive, firearms) remain mandatory.
- DNA & Fingerprint Orders – may still be taken.
- Mandatory Reporting – to professional bodies (e.g., AHPRA, Teachers Registration Board, CBS) may still occur and result in disciplinary proceedings.
- Immigration – Visa applications ask for findings of guilt, not just convictions.
Therefore, legal advice is critical even when a conviction is avoided.
Spent Convictions South Australia
How long does a non conviction stay on your record?
Under Section 4 of the Spent Convictions Act 2009 (SA), any penalty imposed without conviction is deemed immediately spent, so the finding cannot normally be disclosed or taken into account unless an except in Schedule 1 of the Spent Convictions Act 2009 (SA) applies.
Warning: a without-conviction finding is still a finding of guilt and despite being ‘spent’, may be released (and must be disclosed) for jobs involving children, vulnerable adults, police. migration-or security-related work, and similar exempt categories.
For example, while SAPOL’s National Police Certificate omits spent convictions, many private providers can still report the finding. Certain employers (child-related, aged-care, national-security) are entitled to see it despite the spent status.
The Act creates offence-specific exemptions: applicants for teacher registration, JP appointments, defence security work, etc., must disclose even an immediately-spent ‘without conviction’. Disclosure duties are context-dependent.
| Cl. | Exclusion category | What the law allows them to see / use | Typical real-world example |
|---|---|---|---|
| a1 | Application rules (meta-clause) | Explains when exclusions disappear after a pardon, quashed conviction or a magistrate’s order under s 13A. | A quashed youth offence stays hidden even from a WWC check once a magistrate orders it. |
| 1 | Justice agencies | Police, DPP, courts and their contractors can access & reveal spent records for official functions. | SAPOL prosecutor tenders your historic conviction at a later sentencing. |
| 2 | Commonwealth agencies | ASIO, AUSTRAC, migration & citizenship decision-makers, etc. | Security-clearance vetting or a permanent-resident visa application. |
| 3 | Designated judicial authorities | Juries, bail & sentencing hearings may receive the material (court must minimise publication). | Judge considers a prior spent offence when fixing sentence for a new matter. |
| 4 | Parole Board | Full record available when deciding parole. | Lifers up for release cannot hide a spent assault. |
| 5 | Judicial & associated officers | Screening of prospective judges, magistrates, JPs, tribunal members. | Appointment panel for SAET checks a lawyer’s complete history. |
| 6 | Care of children | Any inquiry or job involving children, incl. volunteering. | A school runs an NPC and the spent PCA still appears. |
| 7 | Care of vulnerable people | Aged-care, disability services and advocacy roles. | A nursing-home employer can view a spent drug offence. |
| 8 | Character-test activities | Licensing / registration bodies assessing “fit & proper person”, plus disciplinary action. | Legal Practitioners Board, ASIC, CASA pilot licensing. |
| 9 | Fire-fighting, police & corrections | Fire authorities (arson checks), police recruitment, prison & probation staff. | Applicant for SAPOL cadet role must disclose spent convictions. |
| 9A | Prescribed screening units | DHS / WWCC screening units can access spent information. | SA Working-With-Children Check reveals a spent conviction. |
| 10 | Official records keepers | Custodians of official records may disclose in course of duties. | Court registry clerk issues a certified record incl. spent matters. |
| 11 | Archives & libraries | Normal archival / library work not restricted. | State Archives digitises historical court files. |
| 12 | Reports & authorised publications | Academic, historical, media & law-report uses. | University criminology study quotes anonymised spent convictions. |
| 13 | Non-identifying information | Data may be released if the person cannot be identified. | Crime-stats dataset publishing de-identified offence counts. |
| 14 | Regulation-prescribed exclusions | Cabinet can create further categories via regulation. | Future regs add cyber-security clearance roles. |
Academic reviews of Australia’s spent-conviction regimes conclude that protections are “largely illusory in some contexts”; informal Google searches, private background vendors and broad ‘fit & proper’ tests still let employers see or infer the finding.
Quick FAQ’s
Can I apply for a Section 24 order after sentencing?
No. The application must be made before the court records the conviction.
Does a non-conviction show on a National Police Check?
Yes, “no conviction recorded” will appear under Disclosable Court Outcomes unless spent.
Is Section 24 available for indictable offences?
Only if the court proposes a non-custodial penalty (fine or community service).
What evidence best proves rehabilitation?
Counselling completion certificates, negative drug tests, employer letters.
Written summary of the economic or social harm a recorded conviction would cause (loss of ASIC licence, security clearance, visa ineligibility, etc.).
Courts are expressly permitted to weigh these consequences when deciding whether to withhold conviction.
Will international travel still be affected?
Some countries require disclosure of any finding of guilt; always seek immigration advice.
How often do courts grant Section 24?
Without conviction outcomes are rare. Despite this, Talon Legal has a track record of achieving non-conviction outcomes even in the most serious cases involving
Our previous review of sentencing outcomes revealed, for example, that less than 12% of drink driving cases resulted in a without conviction outcome.
Expert advocacy and early preparation are therefore vital.
Why Choose Us?
- Expert criminal defence lawyers in Adelaide with a proven record of securing without conviction outcomes and non-conviction orders for summary and indictable offences.
- Significant track record of successful non-conviction outcomes across South Australian Courts.
- Transparent fixed-fee quotations and a free initial case assessment.
- In-house proprietary legal artificial intelligence models for predictive outcome analysis.
Speak With an Experienced Criminal Lawyer
Avoiding a conviction may be the difference between a bright future and lifelong limitations due to the stigma of a criminal conviction.
Talon Legal routinely secures Section 24 without conviction outcomes, even in serious criminal, traffic or regulatory matters to protect clients statewide from the stain of a criminal record.
Contact Talon Legal today to discuss your case for free and without any obligation: Call Now (08) 7094 2021 or Book Your Free Case Review Online.
