An amendment to section 7 of the Sentencing Act 1997 (Tas) to allow a fine to be imposed without a conviction being recorded would appear to meet with consensus within the judiciary and law reform bodies in Tasmania. It is a long-held view of Tasmanian magistrates that the sentencing discretion should be enlarged to allow for courts to impose a fine without recording a conviction and this was also the recommendation of the Wing Committee in 1999 and the Tasmania Law Reform Institute in 2008. It is supported by the Chief Justice of the Supreme Court of Tasmania.704 It also has been accepted as an appropriate exercise of judicial discretion within most other Australian jurisdictions. A court can impose a fine without recording a conviction in Victoria,705 South Australia,706 Queensland,707 and the Northern Territory,708 and in New South Wales it has been recommended as a sentencing option.709 In Western Australia, a different approach has been adopted to ameliorating the effect of a conviction, and the Sentencing Act 1995 establishes the option of a fine ‘with or without a spent conviction order’ (s 39(2)(c)). Providing the court with a discretion as to whether or not to record a conviction, when a fine is imposed allows a non-conviction order to have a greater role in punishing an offender. This is the basis of the desire by magistrates to have the option to impose a fine without recording a conviction:
Frequently, magistrates decline to impose a fine because of the adverse impact a conviction would have on the offender’s economic or social wellbeing or employment prospects. Anecdotally, magistrates report that they would have imposed a fine except for the requirement to convict. In terms of sentencing principle, the consequences of recording a conviction sometimes appear disproportionate to the offending and so no fine is imposed.710
699 Tasmania Law Reform Institute, above n 3, [3.9.1].
700 Ibid. In Victoria, from 2009-10 to 2012. a fine was imposed in 64% of cases sentenced in the Magistrates’ Court, 22% of cases in the Children’s Court, 11% of cases in the County Court and 3% of cases in the Supreme Court, Sentencing Advisory Council (Vic), above n 84, [2.3.3]. The Sentencing Advisory Council (Vic) sets out the most common offences in relation to which a fine is imposed, [2.4]. 701 Tasmania Law Reform Institute, ibid.
702 Ibid.
703 These are summarized in Warner, above n 4, [4.102]. See also Pat O’Malley, ‘Politicizing the Case for Fines’ (2011) 10(3) Criminology & Public Policy 547; Sentencing Advisory Council (Vic), above n 84, [2.2.14]-[2.2.61]. Some difficulties in relation to fines are enforcement issues and the problem of the unequal impact of fines. See Tasmania Law Reform Institute, ibid [3.9].
704 Letter from the Chief Justice to the Sentencing Advisory Council, 16 April 2014. 705 Sentencing Act 1991 (Vic) ss 7(1)(f), 49.
706 Criminal Law (Sentencing) Act 1988 (SA) s 16. 707 Penalties and Sentences Act 1992 (Qld) s 44. 708 Sentencing Act (NT), ss 7, 16.
Common features of cases where the court would impose a fine but decline to do so are where the risk of reoffending is low, and the offender’s antecedents and character and the identifiable adverse impact (usually employment or employability) are such that not recording the conviction is justified. Yet, ‘although it may appear undesirable to record a conviction, the community’s interest might be well served if the offender received a measure of punishment’.711
The magistrates provided the following examples of such cases:
Example 1
A young adult pleaded guilty to an assault of moderate seriousness. He was about to graduate from university. He intended to travel and to work overseas requiring a work visa. The court accepted that a conviction would adversely impact upon the applications relevant to those ambitions. The magistrate thought that while a fine alone may have been an appropriate punishment in the circumstances of the case, the consequences of recording a conviction were disproportionate to the offending. The court made an order under s 7(f), releasing the defendant without conviction and adjourning the proceedings.
Example 2
A 60 year old man earned his income as a horse trainer. He was charged with possession of a modest quantity of cannabis, using cannabis (for pain management, it was accepted) and cultivation for his own use. He had no history of drug offending and only minor traffic matters. The court accepted that a conviction would result in the loss of the defendant’s training licence and the income he earned from it. While a fine may have been an appropriate punishment in the circumstances of the case, the consequences of recording a conviction (loss of the training licence and the income he derived from that licence) were disproportionate to the offending. The court made an order under s 7(f), releasing the defendant without conviction and adjourning the proceedings.712
In these cases, it was thought that a fine was appropriate but the recording of a conviction inappropriate because of the consequences for the employment prospects of the defendant.
Further, the Tasmania Law Reform Institute has asserted that it is ‘anomalous that courts can make a probation order without recording conviction but have no such power in relation to fines’.713 This is also the view of Tasmanian magistrates who note that:
It is puzzling that the discretion not to convict accompanies a probation order, but not a fine. The Sentencing Act
1997 (Tas), s 7 is generally understood to set out a hierarchy with imprisonment at the top. The position of the fine within the hierarchy is interesting. The sentencing options in the subsection immediately above (probation) and immediately below (family violence rehabilitation program and the ‘7(f)’ release and adjourn) do not require a conviction to be recorded, yet s 7(e) does. The usual length of a probation order is 12 months and such orders often involve onerous obligations of attendance, supervision and the liability to be returned to court in the event of breach.714
If it is accepted that a non-conviction order is an appropriate basis for a probation order, then it is difficult to argue that a fine should be only be imposed if a conviction is recorded.
711 Ibid. 712 Ibid.