Can I Avoid a Conviction Even If I Am Guilty in Australia?
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Quick Answer
Yes. In NSW, a court can find you guilty of a criminal or traffic offence and still decide not to record a conviction. This is done under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Section 10 gives the court three options: dismiss the charge outright, discharge you on a Conditional Release Order without conviction, or discharge you into an intervention program. In each case, you’re found guilty, but no conviction goes on your record.
Guilty vs Convicted: The Distinction That Matters
A finding of guilt means the court accepts you committed the offence, whether by plea or at hearing. A conviction is a separate step, where that finding is formally recorded on your criminal record.
These are not the same thing: a court can make the first without the second.
A conviction, not the guilty finding itself, is what appears on police checks, visa applications, and licensing checks.
How Often Courts Choose Not to Record a Conviction
NSW Bureau of Crime Statistics data shows the Local Court recorded “no conviction” as the outcome in about 4% of all penalties imposed between July 2022 and June 2023, roughly 5,200 cases out of 123,772.
A further 15% of penalties in that period were resolved through conditional release orders or similar non-conviction bonds. Combined, close to 19% of Local Court penalties involved no recorded conviction.
Factors Courts Consider Before Recording a Conviction
Courts weigh the following before deciding whether to record a conviction:
- The person’s character, age, health, and mental condition
- The trivial nature of the offence
- The extenuating circumstances in which it was committed
- Any other matter the court considers relevant, including the practical impact of a conviction on employment
In R v Mauger [2012] NSWCCA 51, the NSW Court of Criminal Appeal confirmed that the impact of a conviction on a person’s employment is a relevant factor under this last category.
There is no guaranteed outcome. The court weighs these factors against the seriousness of the offence in every case.
Does a Guilty Plea Affect the Outcome?
A guilty plea is treated favourably, as it demonstrates remorse and saves court time. It is not a requirement.
In Matheson v Director of Public Prosecutions (NSW) [2008] NSWSC 550, the NSW Supreme Court confirmed that a not guilty plea does not exclude a non-conviction outcome if the person is later found guilty at hearing.
The Legal Basis: Section 10
This outcome is available under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which allows a court to find a person guilty without recording a conviction through one of three orders:
Order | Effect |
Dismissal | Charge dismissed, no conditions imposed |
Conditional Release Order (CRO) | Discharged on good behaviour conditions for up to 2 years, no conviction |
Intervention program | Discharged into a program such as drug treatment or mental health support |
A CRO can be revoked if the person breaches its conditions or reoffends during its term. The court can then re-sentence the person, including recording a conviction.
Legal Basis for the Discretion
Cobiac v Liddy (1969) 119 CLR 257 is the leading authority on this discretion. Justice Windeyer described the power to withhold a conviction as a way to extend mercy, noting that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.
R v Ingrassia (1997) 41 NSWLR 447 held that the legal and social consequences of a conviction often exceed the penalty imposed by the court.
Limits on This Outcome
- Appeal rights are unaffected. A person can appeal the finding of guilt whether or not a conviction was recorded.
- Some checks still show it. A standard National Police Check will not show a non-conviction outcome. Police, immigration authorities, and some licensing or Working with Children Check bodies can access broader records.
- It is less available for serious offences. This outcome is mostly used in the Local Court for less serious or first-time offences. Serious indictable offences in the District or Supreme Court rarely attract it.
- Domestic violence matters are treated cautiously. Courts apply this outcome more restrictively in domestic violence matters, following R v Sharrouf [2023] NSWCCA 137.
Final Thoughts
Being guilty of an offence in Australia does not automatically result in a criminal conviction. Courts regularly find people guilty and choose not to record a conviction, based on character, circumstances, and the seriousness of the offence. This outcome is not guaranteed, but it is a well-established and commonly used sentencing option in NSW courts.
Frequently Asked Questions
If I’m guilty, will I automatically get a criminal record in Australia?
No. Courts can find a person guilty and still decide not to record a conviction, most commonly through a section 10 order under the Crimes (Sentencing Procedure) Act 1999 (NSW).
Does pleading guilty guarantee I’ll avoid a conviction?
No. A guilty plea is a favourable factor, but the court still weighs character, circumstances, and the seriousness of the offence.
Can I avoid a conviction if I plead not guilty and I’m found guilty at hearing?
Yes. Matheson v DPP (NSW) [2008] NSWSC 550 confirms that a not guilty plea does not exclude this outcome.
Will avoiding a conviction show up on a background check?
Not on a standard National Police Check. Police, immigration authorities, and some professional licensing or Working with Children Check bodies can access broader records.
Can this outcome be reversed later?
A dismissal cannot be reversed once made. A Conditional Release Order can be revoked if its conditions are breached, and the court can then record a conviction.
Can I still appeal if I avoid a conviction?
Yes. The right to appeal the finding of guilt is the same as if a conviction had been recorded.
Does this apply to domestic violence charges?
It is legally available for offences that do not carry mandatory imprisonment, but courts apply it cautiously in this context following R v Sharrouf [2023] NSWCCA 137.
How common is it to avoid a conviction in NSW?
NSW Bureau of Crime Statistics data shows around 4% of Local Court penalties between July 2022 and June 2023 involved no recorded conviction, with a further 15% resolved through conditional release orders or similar non-conviction bonds.
If your matter is urgent, call (02) 8084 9929 today to arrange a free initial consultation.
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