Getting charged with a criminal offence can feel like a heavy weight, one that doesn’t just go away even if you get through the court process. A criminal conviction can cast long shadows, affecting where you can travel, where you work, even the loans you can get. But what if there was a way to keep that record clean?
Whether you’re dealing with state offences or facing serious federal charges, there are strategies that may help you avoid a conviction entirely. In this guide, we’ll dive into the legal options available, from Section 19B Orders to factors courts consider when deciding whether to record a conviction, so you can understand how to protect your future.
Understanding Convictions and Court Discretion
In Australia, courts have discretion when it comes to recording a conviction for state and territory offences. However, if you’re dealing with a federal, or Commonwealth, offence, the process is stricter. Courts apply a specific test to decide whether a conviction can be avoided, meaning the details of your case, your history, and the offence itself all come into play.
What Are Federal Offences?
Federal offences include a range of serious crimes under the jurisdiction of the Australian federal government. Examples of these offences include:
– Aviation-related crimes
– Threats or assaults against federal officials
– Child sex offences by Australians abroad
– Cybercrimes affecting government systems
– Drug importation/exportation
– People smuggling and human trafficking
– Terrorism-related offences
– Fraud against the Commonwealth
Since federal offences are serious, avoiding a conviction in such cases can be challenging. However, under certain conditions, you may be eligible for a Section 19B Order under the Crimes Act 1914 (Cth).
Section 19B Orders: An Option for Avoiding Conviction
A Section 19B Order allows the court to dismiss charges or discharge you without recording a conviction, provided certain conditions are met. You may have to agree to be of good behavior for up to three years, pay restitution, or fulfill other conditions set by the court. To determine if this is an option, courts follow a two-step test:
Step 1: Evaluating the Person and the Offence
The first part of the test involves examining several factors.
- Character, Antecedents, Age, or Mental Condition: Courts consider your background, including your past behavior, personal history, and any prior convictions. Factors such as being a first-time offender or having good character can weigh in your favor.
- Trivial Nature of the Offence: If the offence is deemed minor or technical, the court might view it more leniently. However, proving an offence is “trivial” can be difficult, as the court will look at both the statutory penalty and the nature of the conduct.
- Extenuating Circumstances: If your actions were influenced by extenuating circumstances, such as an emergency or mental health issues, the court may consider this in deciding whether to grant a Section 19B Order.
If the court finds that one of these factors applies to your case, it can proceed to the second step.
Step 2: Assessing Punishment Suitability
In the second step, the court will consider whether it would be expedient or appropriate to avoid a heavy penalty in favor of a lesser one. This includes whether:
– It would be inappropriate to inflict punishment at all
– Only nominal punishment should be applied
– Probation might be a suitable alternative
If the court finds it suitable, it may issue a Section 19B Order, which avoids recording a conviction.
Limits of Section 19B Orders
Not every federal offence is eligible for a Section 19B Order. For instance, some offences under the Migration Act 1958 are excluded, and other offences may be deemed too serious for the court to grant leniency.
Consequences of Reoffending
If you are granted a Section 19B Order and manage to avoid a conviction, remember that reoffending can carry significant consequences. Although a conviction was not recorded initially, any subsequent offence of a similar nature may lead to a harsher sentence, as you would be considered a repeat offender.
Seeking Legal Advice
If you’re facing charges, it’s essential to seek legal advice. An experienced lawyer can assess whether you may be eligible for a Section 19B Order or other forms of leniency. Understanding your options and rights can make a significant difference in avoiding a criminal record that could impact your future.
Avoiding a criminal conviction is possible, but it requires navigating the legal system carefully. With the right strategy and legal assistance, you may be able to minimize the impact of a criminal charge on your life.
