Spent Convictions – Finally Here

This article was first published on 24 March 2021. The enactment of the Spent Convictions Act 2021 (Vic) means that certain findings of guilt may now become spent. Please read our articles about spent convictions to read more about the current legislation and process.
 
The article Spent Convictions – Finally Here is written by Bill Doogue, Director, Accredited Criminal Law Specialist, Doogue + George Defence Lawyers.

Bill is a director of the operations of Doogue + George. He has been an accredited criminal law specialist ever since 1998 and has over 30 years of experience in criminal defence.

Over the years, Bill's legal expertise has allowed the firm to represent numerous clients - including high ranking church officials, state and federal politicians, as well as huge corporations which sometimes involve foreign jurisdictions. His excellence in the field earned him a Law Institute of Victoria Service Award in 2013 and the title of Preeminent Criminal Defence Lawyer in the Doyle’s Guide 2023.
 

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The Victorian parliament recently passed the Spent Convictions Bill 2021 (Vic) (‘the Spent Convictions Bill’). The Spent Convictions Bill gives people who have been found guilty of criminal offences an opportunity to avoid that finding of guilt being disclosed in a criminal history check. This is a great opportunity for people who have committed offences to “turn a new page” in their life and no longer be burdened by an out of character indiscretion that for some was committed a while ago. This truly promotes rehabilitation because it allows people to apply for jobs without fearing that they will be over-looked because they have a criminal record.

This article will provide some information on how the Spent Conviction scheme will work.

How does the scheme work?

Convictions Spent Automatically

People will have their conviction automatically spent for minor offences where the sentencing Magistrate chooses to exercise their power under the Sentencing Act 1991 to not record a conviction. This makes preparing for and conducting Plea Hearings more important because the benefit of a “without conviction” outcome will have a long-lasting benefit.

For people who are found guilty of criminal offences in the Children’s Court when they are under the age of 15 years, their conviction will be spent automatically. This includes children who commit serious violence offences and sexual offences or were sentenced to more than 30 months in youth detention.

Children under 18 years are eligible for the conviction to be spent automatically, if the Children’s Court imposes a fine.

Convictions Spent Automatically After a Period of Time

In cases where the Court imposed more than a fine, but the offence is not a ‘serious conviction’ offence (addressed below), the conviction will be automatically spent after 10 years for an adult and 5 years for a child. The conditions of this are:

1. There has been no further offending
2. If a term of imprisonment was imposed, it was 30 months or less.

Application for a Spent Conviction Order

A person who received a ‘serious conviction’ may apply to the Magistrates’ Court for an order that their conviction be spent if:

1. they were found guilty of a serious violence offence or a sexual offence and did not receive a term of imprisonment; or
2. if they were found guilty of any other type of offence and received a term of imprisonment of less than 5 years.

A ‘serious conviction’ is defined to encompass a finding of guilt which resulted in a gaol sentence of more than 30 months, a finding of guilt for a sexual offence or a finding of guilt for a serious violence offence.

A person can apply for a spent conviction order 10 years after the finding of guilt is entered on the Court record if they are an adult. Or 5 years after the finding of guilt was recorded if the applicant was a child at the time they appeared in Court.

How is the Application Made?

A person can make their application to have their conviction spent in writing to the Court setting out:

1. their full name
2. the conviction which the application is made
3. information in support of rehabilitation
4. any prescribed information and requests made by the Magistrates’ Court

Notice of the application must be served on the Attorney-General and the Chief Commissioner of Police.

The application can be determined by filing written submissions or the Magistrates’ Court may conduct a hearing. The hearing must be closed to protect the identity of the person making the application.

Our firm is experienced in making similar applications under other legislation and can assist you with your application. If you would like to know if you are eligible to make an application or would like representation, feel free to call us on 9670 51 11 to speak with one of our experienced lawyers.

Our firm campaigned for many years for a spent conviction scheme. We are very pleased it has passed as it will allow people, deserving of another chance, to make a fresh start.