Sentences without conviction: protecting an offender from unwarranted discrimination in employment

In all Australian jurisdictions, courts have discretion to impose a sentence without recording a conviction. Legislation sets out factors relevant to the exercise of the court’s discretion and in Tasmania, Victoria and Queensland, the court is directed (among other matters) to have regard to the economic or social consequences for an offender of recording a conviction, including its impact on the offender’s employment prospects. Non-conviction sentences have been criticised for failing to achieve this objective, with some commentators proposing their abolition. This article examines the discretion to sentence without conviction, in relation to adult offenders in Tasmania, Victoria and Queensland and considers whether non-conviction sentences are able to protect an offender from unwarranted discrimination in employment. It argues that the employment protections to those who are not formally convicted are largely illusory in some contexts, and advances legislative recommendations that provide a more coherent approach to give effect to the judicial intent of not recording a conviction.