Frequently Asked Questions

Q: If there has been a determination of guilt by the courts: Do judges have the discretion not to record a conviction?

In instances where a determination of guilt has occurred, the majority of people will probably hope that a judge will use their discretion to not record a conviction: But do judges actually have that authority? Well, they do, and we can turn to the matter of R v Celep [1998] 4 VR 811; (1998) 100 A Crim R 310 (CA), which was a case where the jury after returning a verdict of guilty, the presiding judge used his discretion to not record a conviction under s 75 of the Sentencing Act 1991 (Vic):

Section 75 states the following in regards to release on adjournment without conviction:

“(1) A court, on being satisfied that a person is guilty of an offence, may(without recording a conviction) adjourn the proceeding for a period of up to 60 months and release the offender on the offender giving an undertaking with conditions attached.

(2) An undertaking under subsection (1) must have as conditions-

   (a) that the offender attends before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned; and

   (b) that the offender is of good behaviour during the period of the adjournment; and

   (c) that the offender observes any special conditions imposed by the court.

(3) Subject to Division 3 of Part 3B, a court may attach a justice plan condition that the offender participate in the services specified in a justice plan for a period of up to 2 years specified by the court or the period of the adjournment, whichever is the shorter.

(4) An offender who has given an undertaking under subsection (1) may be called on to attend before the court-

   (a) by order of the court; or

   (b) by notice issued by the proper officer of the court.

(5) An order or notice under subsection (4) must be served on the offender not less than 4 days before the time specified in it for the attendance.

(6) If at the time to which the further hearing of a proceeding is adjourned the court is satisfied that the offender has observed the conditions of the undertaking, it must dismiss the charge without any further hearing of the proceeding.”

Ultimately in Celep, the Court of Appeal allowed for an appeal against conviction on the unsafe and unsatisfactory ground a verdict of acquittal was entered.

It should be highlighted that all jurisdictions have similar provisions to the Victorian Act, allowing for a judge to use their discretion of not recording a conviction in the event that a determination of guilt has been made.

   (a) that the offender attends before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned; and

   (b) that the offender is of good behaviour during the period of the adjournment; and

   (c) that the offender observes any special conditions imposed by the court.

(3) Subject to Division 3 of Part 3B, a court may attach a justice plan condition that the offender participate in the services specified in a justice plan for a period of up to 2 years specified by the court or the period of the adjournment, whichever is the shorter.

(4) An offender who has given an undertaking under subsection (1) may be called on to attend before the court-

   (a) by order of the court; or

   (b) by notice issued by the proper officer of the court.

(5) An order or notice under subsection (4) must be served on the offender not less than 4 days before the time specified in it for the attendance.

(6) If at the time to which the further hearing of a proceeding is adjourned the court is satisfied that the offender has observed the conditions of the undertaking, it must dismiss the charge without any further hearing of the proceeding.”

Ultimately in Celep, the Court of Appeal allowed for an appeal against conviction on the unsafe and unsatisfactory ground a verdict of acquittal was entered.

It should be highlighted that all jurisdictions have similar provisions to the Victorian Act, allowing for a judge to use their discretion of not recording a conviction in the event that a determination of guilt has been made.