Criminal convictions and their lifelong impact....real or imagined?

Transcription

1 Criminal convictions and their lifelong impact...real or imagined?

2 How will this affect me?

3 Short answer: It depends May depend on: Age of offender (at time of offence and conviction)

4 Age Under 17 at time of offence and under 18 at time of conviction: Entry on juvenile criminal history No impact beyond 17 if no conviction recorded 17 or over at time of offence or 18 or over at time of conviction Entry on adult criminal history Note there are exceptions!» E.g. Section 140 of the Youth Justice Act 1992

5 Short answer: It depends May depend on: Age of offender (at time of offence and conviction) Type of charge Whether a conviction is recorded Type / length of sentence Whether there are any previous convictions Whether there has been a successful appeal

6 An Act to provide with respect to the rehabilitation of persons convicted for offences and for related purposes

7 Definitions in section 3 criminal history means, in relation to any person, the convictions recorded against that person in respect of offences conviction means a conviction by or before any court for an offence, whether recorded, in Queensland or elsewhere, before or after the date of commencement of this Act.

8 Definitions in section 3 (continued) charge means an allegation formally made in court that a person has committed an offence where (a) the allegation is not pursued to a final determination in a court; or (b) a conviction is not recorded by a court in respect of the allegation; or (c) a conviction recorded by a court in respect of the allegation is to be deemed, pursuant to law, not to be a conviction

9 Definitions in section 3 (continued) rehabilitation period means (a) in relation to a conviction upon indictment recorded against a person who in relation to that conviction was not dealt with as a child (i) a period of 10 years commencing on the date the conviction is recorded; or (ii) where an order of a court made in relation to the conviction has not been satisfied within that period of 10 years a period terminating on the date the order is satisfied; whichever period is the later to expire; or...

10 Definitions in section 3 (continued) rehabilitation period means... (b) in relation to a conviction recorded against a person where paragraph (a) does not apply (i) a period of 5 years commencing on the date the conviction is recorded; or (ii) where an order of a court made in relation to the conviction has not been satisfied within thatperiod of 5 years a period terminating on the date the order is satisfied; whichever period is the later to expire.

11 Therefore, the rehabilitation period : Is 10 years for an offence on indictment (adult only) Otherwise, 5 years, that is: Not on indictment On indictment but dealt with as a child Conviction recorded in both instances

12 However, see section 3(2): The only convictions in relation to which a rehabilitation period is capable of running are convictions upon which (a) the offender is not ordered to serve any period in custody; or (b) the offender is ordered to serve a period not exceeding 30 months in custody (including ordered by way of default), whether or not in the event the offender is required to actually serve any part of that period in custody...

13 Therefore, the rehabilitation period : Is 10 years for an offence on indictment (adult only) Otherwise, 5 years, that is: Not on indictment On indictment but dealt with as a child Conviction recorded in both instances But a rehabilitation period will only run if the sentence imposed does not include jail of more than 2½ years.

14 Also, section 3(3) is interesting: (3) A provision of law or rule of legal practice that requires or authorises disclosure of convictions or charges made against any person shall be construed as requiring or authorising disclosure of the criminal history of that person. Compare section 5(1): (1) It is declared that a conviction that is set aside or quashed and a charge are not part of the criminal history of any person

15 The expiration of a rehabilitation period is not necessarily the end of the matter Convictions can be revived See section 11 Revival of convictions

16 Section 11: A previous conviction can be revived whether or not the previous rehabilitation period has expired That rehabilitation period will commence again However can not be revived by: a simple or regulatory offence an offence in respect of which the offender could be dealt with in summary proceedings unless the court by which the person is subsequently convicted is satisfied that, having regard to the public interest, previous convictions recorded against the person, or any of them, should be revived and pronounces accordingly in its order

17 Section 5 (Matter excluded from criminal history):... (2) A person shall not be required or asked to disclose and, if so required or asked, shall not be obliged to disclose for any purpose a conviction that is not part of the person s criminal history or of the criminal history of another person or a charge made against the person or another person.

18 Section 5 (surprise, surprise, there are exceptions): (3) Subsection (2) does not apply where the requirement or request to disclose a conviction or charge therein referred to is made (a) for the purposes of an inquiry being conducted pursuant to authority conferred by or under an Act; or (b) in criminal or civil proceedings before a court if the fact of the conviction or charge is relevant to an issue in the proceedings or the court has granted permission for the requisition or request to be made.

19 Section 6 (Non disclosure.. upon expiration of rehabilitation period): Where the rehabilitation period has expired in relation to a conviction recorded against any person and the conviction has not been revived in respect of the person, neither that person nor any other person, if the person knows that the rehabilitation period has expired, shall disclose the conviction unless

20 Section 6 (continued): unless (a) being the person against whom the conviction is recorded the person wishes to disclose the conviction; or (b) the person makes the disclosure under the authority of a permit granted under section 10 in accordance with the conditions (if any) of the permit; or (c) the person makes the disclosure in circumstances that constitute an exception to the operation of section 9(1) or that are expressed by section 9(2) to be a case to which the provisions of section 9(1) do not apply

21 Section 6 (continued): Section 7 lists circumstances in which section 6 does not apply

22 Section 8 (Lawful to deny certain convictions): (1) Where the rehabilitation period has expired in relation to a conviction recorded... and the conviction has not been revived..., it is lawful to claim... that the person has not suffered the conviction, except upon an occasion when, as provided by section 4, this Act is to be construed so as not to prejudice a provision of law or rule of legal practice or to relieve from a responsibility. (2) Where a person has made a claim declared lawful by subsection (1), evidence shall not be admissible in any proceeding to show the claim to be false.

23 Section 8: Related to section 6. Makes it lawful to claim, on oath or otherwise, that a person has not suffered a conviction: If the rehabilitation period has expired; and If the conviction has not been revived. Subject to an exception. Also precludes the admission of evidence in a proceeding to show such a claim to be false (where claim lawfully made).

24 Section 5: No need (generally) to disclose if not part of criminal history Section 6: No need (generally) to disclose if rehabilitation period has expired (and not revived) Section 8: Lawful (generally) to deny convictions where rehabilitation period has expired (and not revived)

25 Section 9:...any person or authority charged with the function of assessing a person s fitness to be admitted to a profession, occupation or calling or for any other purpose shall disregard any conviction that is part of the person s criminal history in relation to which the rehabilitation period has expired and which has not been revived... unless...

26 Section 9A:... an applicant for a position, office or status specified in column 1... and who is requested or required in furtherance of the person s application to furnish the [following] information... shall disclose : (a) the person s criminal history concerning offences... in column 2... ; and (b) convictions recorded against the person in respect of offences specified in column 2..., being convictions that pursuant to any law are to be deemed not to be convictions.

27 Section 9A: Columns 1 and 2 of the Table span 6 pages Act. For example: If applying with QPS or to be a JP, must disclose contraventions of or failure to comply with any provisions of law, whether committed in Queensland or elsewhere ; If applying to be a teacher or teacher s aid with Education Department, must disclose offences... in the Criminal Code, chapter 22, 32, 33 or 34 or the [DMA] part 2, and contraventions, committed in Queensland or elsewhere, of any provision of law constituting an offence of a similar nature or involving an assault of a sexual nature.

28 Criminal histories and equal opportunities in employment Some denials of opportunities are justified Some are discrimination Complaints can be made to the Australian Human Rights Commission Investigations and potential conferences do not lead to legally enforceable resolutions Legal Aid Queensland s anti discrimination team can provide assistance.

29 Finally: Section 10: Criminal Law (Rehabilitation Can apply to the Minister for a permit where there is a legitimate and sufficient purpose for disclosing a conviction. Minister can attach conditions to the permit. Section 12: it is an offence not to comply with the provisions of the Act. 100 penalty units.

30 Conviction recorded / not recorded For youths: Sections 183 and 184 of the Youth Justice Act For adults: Section 12 of the Penalties and Sentence Act Mandatory in some instances Cases: R v TX [2011] QCA 068 and R v DAU; ex parte AG (Qld) [2009] QCA 244 R v Ndizeye [2006] QCA 537 and R v Rogers [2013] QCA 192

31 Conviction recorded / not recorded Disclosure in subsequent criminal proceedings Will be relevant to operation of Criminal Law (Rehabilitation Relevant to whether deemed to be a reportable offender under the Child Protection (Offender Reporting) Act years 15 years Life Consider risk of re sentence on a breach of CBO

32 Travel To Australia (refuse visa) Remaining in Australia (cancel visa) Character Test The Character Requirement under section 501 of the Migration Act 1958 onus on the visa applicant Travelling outside of Australia Entry requirements vary from country to country Consulate or embassy websites can assist Can vary from visa to visa

33 Travel Example travelling to the USA Visa Waiver Program (VWP) and ESTA Electronic System for Travel Authorization All sorts of prerequisites, including: You are a citizen or eligible national of a Visa Waiver Program country. Your travel is for 90 days or less. You plan to travel to the United States for business or pleasure.

34 Travel Example travelling to the USA ESTA May not be able to use it if you have a criminal history

35 Travel Example travelling to the USA Have you ever: been arrested or convicted for: an offense or crime involving moral turpitude or a violation related to a controlled substance; or two or more offenses for which the aggregate sentence to confinement was five years or more; or been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?

36 Travel Example travelling to the USA ESTA May not be able to use it if you have a criminal history Need to have an interview DFAT s advises: Australians with a criminal record (regardless of how minor or how long ago the offence took place) should ensure they seek advice from their nearest United States Embassy or Consulate about their visa requirements for entering or transiting the United States.

37 What else will a conviction mean? Offender levy sections 179A 179H (Part 10A) of the Penalties and Sentences Act 1992 currently: $ for Magistrates Court $ for District and Supreme Courts Penalties and Sentence Regulation 2005

38 What else will a conviction mean? Jury service Not eligible for jury service if have: been convicted of an indictable offence (incl. summarily); or been sentenced (in QLD or elsewhere) to imprisonment. Section 4(3)(m) and (n) of the Jury Act The operation of the Criminal Law (Rehabilitation of Offenders) Act is specifically excluded as far as disclosure of information under the Jury Act is concerned See, for example, sections 12, 35, 43, 68 of the Jury Act 1995

39 What else will a conviction mean? Will form part of criminal history for court Affect sentences later imposed Sections 9(2)(f) and 11(a) of Penalties and Sentence Act See also section 9(8) and (9): (8) In determining the appropriate sentence for an offender who has 1 or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to (a) the nature of the previous conviction and its relevance to the current offence; and (b) the time that has elapsed since the conviction. (9) Despite subsection (8), the sentence imposed must not be disproportionate to the gravity of the current offence.

40 What else will a conviction mean? Will form part of criminal history for court Affect sentences later imposed Sentence of imprisonment for a serious sexual offence brings a risk of a future application under the Dangerous Prisoners (Sexual Offenders) Act 2003 serious sexual offence means an offence of a sexual nature involving violence or against children. Sentence of an adult for a repeat serious child sex offence results in a mandatory life jail sentence or an indefinite sentence serious child sex offence provision in schedule 1A, or counselling or procuring in relation to a child under 16 [where] would be liable to imprisonment for life.

41 Summary In assessing the potential future impact of a conviction / sentence, consider: Age (at time of offence and at sentence) Sentence Rehabilitation period (Is there one? Length? Revives previous?) Offender levy Recording of conviction Any future obligations (e.g. probation, offender reporting) Impact on future sentences (e.g. DPSOA, two strikes) Impact on future generally (e.g. employment, travel, jury)

42 Cases re CL(RoO)A and the recording of convictions R v Briese; ex parte A G [1997] QCA 10 R v Gallagher; ex parte A G [1997] QCA 467 Followed in R v Hoch; ex parte A G [2001] QCA 63 R v Millar [1998] QCA 276 R v Cay, Gersch and Schell; ex parte A G [2005] QCA 467 R v Clarke [2005] QCA 483