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PENALTIES AND SENTENCES ACT 1992 - SECT 12

Court to consider whether or not to record conviction

12 Court to consider whether or not to record conviction

(1) A court may exercise a discretion to record or not record a conviction as provided by this Act.
(2) In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—
(a) the nature of the offence; and
(b) the offender’s character and age; and
(c) the impact that recording a conviction will have on the offender’s—
(i) economic or social wellbeing; or
(ii) chances of finding employment.
(3) Except as otherwise expressly provided by this or another Act—
(a) a conviction without recording the conviction is taken not to be a conviction for any purpose; and
(b) the conviction must not be entered in any records except—
(i) in the records of the court before which the offender was convicted; and
(ii) in the offender’s criminal history but only for the purposes of subsection (4) (b) .
(3A) Despite subsection (3) (b) , the conviction may be entered in a record kept by a department, a prosecuting authority or the offender’s legal representative if it is necessary for the legitimate performance of the functions of the department, prosecuting authority or legal representative.
(4) A conviction without the recording of a conviction—
(a) does not stop a court from making any other order that it may make under this or another Act because of the conviction; and
(b) has the same result as if a conviction had been recorded for the purposes of—
(i) appeals against sentence; and
(ii) proceedings for variation or contravention of sentence; and
(iii) proceedings against the offender for a subsequent offence; and
(iv) subsequent proceedings against the offender for the same offence.
(5) If the offender is convicted of a subsequent offence, the court sentencing the offender may disregard a conviction that was ordered not to be recorded but which, under subsection (3) (b) (ii) , is entered in the offender’s criminal history.
(6) If—
(a) a court—
(i) convicts an offender of an offence; and
(ii) does not record a conviction; and
(iii) makes a probation order or community service order for the offender; and
(b) the offender is subsequently dealt with by a court for the same offence in any way in which it could deal with the offender if the offender had just been convicted by or before it of the offence;
the conviction for the offence must be recorded by the second court.
(7) Despite subsection (6) , the second court is not required to record the conviction for the offence if—
(a) the offender is the subject of a community service order or probation order; and
(b) the reason the court is dealing with the offender for the same offence is because the offender has applied for a revocation of the community service order or probation order; and
(c) the offender has not breached the community service order or probation order.



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