Updated October 26, 2022
Updated October 26, 2022
This article was first published on 26 October 2022. 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 Criminal Records and Spent Convictions is written by Doogue + George Defence Lawyers.
Doogue + George are experts in criminal law and have been involved in thousands of criminal matters and defended clients in hundreds of jury trials and thousands of other criminal cases. Our experienced lawyers have unparalleled experience in criminal law.
For many clients facing criminal charges for the first time, a primary concern is the implications and consequences of having a criminal record. Until recently, the only way to avoid a criminal record in Victoria when accepting responsibility for committing a crime was through a Criminal Justice Diversion Program (‘Diversion’). However, the enactment of the Spent Convictions Act 2021 (Vic) now creates further opportunities for people pleading guilty to criminal offending to avoid having it form part of their criminal record.
Having a criminal record can affect people in two main ways. Firstly, it can be accessed by police when investigating future suspected criminal activity and replied upon in subsequent criminal proceedings against you. Secondly, and of most common concern, is that your criminal record may appear on official police records requested by you, such as a National Police Check.
A National Police Check that reveals prior criminal history and convictions may have implications for housing, access to services, and employment and job prospects. It may prevent you from entering certain professions such as public office, police and defence, as well as registration professions such as those of doctors, social workers, psychiatrists, nurses, dentists and optometrists. It also may have implications for traveling overseas, as some embassies may require information on prior criminal history before granting visas, whilst others have laws preventing people with convictions or findings of guilt from entering their country.
Diversion, as the name suggests, is aimed at diverting an accused away from the criminal justice system, specifically first-time offenders, or people with little or dated prior criminal history. To be eligible for Diversion, the Prosecution must first support the application for Diversion. Next, a Magistrate must grant the application, with the accused accepting responsibility for their role in the offending. The Prosecution and the Magistrate will take into consideration any prior criminal history and the circumstances and seriousness of the offending, as well as the victims’ views, should they provide them.
If the Magistrate agrees that an accused is suitable for diversion, they will be placed on a Diversion Plan and required to follow and complete certain conditions within the duration of the Diversion Plan, such as:
The primary benefit of Diversion is that successful completion of the Diversion Plan allows an accused to avoid a criminal record and engage in activities aimed to rehabilitate and reduce the likelihood of reoffending. Notwithstanding, there are some matters for which diversion is not appropriate or available.
Previously, where Diversion was not appropriate or available, this was the end of the line for clients wishing to avoid having a criminal record recorded. However, with the enactment of the Spent Convictions Act 2021 (Vic) (‘the Act’), certain findings of guilt may now become spent. A spent conviction is a record of criminal conviction, defined as any finding of guilt in a Court or infringement convictions, that under the Act no longer forms part of a person’s criminal record and is not required to be disclosed, except in limited circumstances.
The Spent Convictions Scheme aims to reduce unfair barriers, discrimination and disadvantage faced by Victorians who have committed criminal offences. By allowing for certain convictions to be spent, the Act aims to ease the burdens faced by Victorians with historical or minor criminal convictions. A product of significant and sustained advocacy, the Spent Conviction Scheme also seeks to address the disproportionate and discriminatory impact such convictions have upon First Nations People, who in many instances already face disadvantages by virtue of over incarceration, poverty, institutionalisation, and racism.
There are three ways in which a conviction may be spent:
The following set out each option, their limitations and their exceptions:1
From 1 December 2021, certain findings of guilt and infringements were able to be immediately spent where, upon pleading guilty, an accused is found guilty of an offence and:
However, exceptions apply where a penalty is imposed subject to the fulfilment of certain conditions, as is the case with Good Behaviour Bonds.3 Good Behaviour Bonds (‘GBB’), also referred to as an Adjourned Undertakings, arise where an accused person pleads guilty to a criminal offence and makes a promise to the Court to be of good behaviour for a fixed period of time. A GBB is most commonly for a period of 12 months but can be up to 60. It must include the condition that the accused be of good behaviour for the duration of the order, but may also include any order conditions the Court deems relevant, such as:
Where a Magistrate sentences an accused to a GBB without conviction, the Act operates such that the finding of guilt will be spent once the conditions of the GBB have been complied with, but may be disclosable during the period of the GBB.4 This sees GBB operating similarly to a Diversion where, upon its successful completion, an automatically spent GBB would no longer form part of a person’s criminal record, be disclosable or show up on a National Police Check, unless an exception applied.
The second category of spent convictions refers to those that are spent automatically. Often referred to as the ‘crime-free period’, these are convictions that, provided the accused was not convicted of a ‘serious conviction’ and does not reoffend within the specified period, will be automatically spent once the conviction period expires. The crime-free or conviction period expirations are:5
The time period for a spent conviction commences on the day the conviction is recorded,6 but will restart if the person reoffends and receives another conviction within the crime-free period. Though low-level convictions of the following nature will not restart the crime-free period:
Convictions for ‘serious convictions’ are not capable of being automatically spent, that is, crimes consisting of:
For ‘serious convictions’ to be spent, a spent conviction order must be applied for at the Magistrates’ Court.
Coming into effect from 1 July 2022, persons convicted of crimes deemed as ‘serious convictions’ have been afforded the opportunity to apply to the Magistrates’ Court for a Spent Conviction Order. Where a Spent Conviction Order is made by a Magistrate, the conviction will no longer form part of the person’s criminal record and will no longer be disclosable unless an exception applies.
To apply, the person must have been sentenced for a ‘serious conviction’ and have completed their crime-free period at the time of applying. That is:
In making an application, the Chief Commissioner of Police may make submissions to the Court and the applicant is given an opportunity to respond to adverse materials. Ultimately, the decision to make a Spent Conviction Order by a Magistrate is a balancing exercise, with regard given to:
Where the applicant is a First Nations Person, the Magistrate must also have regard to factors specific to Aboriginal and Torres Strait Islander persons, namely the incarceration of Aboriginal and Torres Strait Islander persons and factors that impact Aboriginal and Torres Strait Islander persons’ disclosure of criminal records. Should an application be refused, the applicant must produce new and supporting information to apply again within 2 years of an otherwise valid application being refused.
Despite the opportunities offered by the Act to avoid criminal records, there are convictions which may never become spent under the Act. Where the person was:
These convictions may never become spent. Equally, where an adult is sentenced to 5 or more years imprisonment, this conviction can never become spent.
Notably, however, and in keeping with commonly applied legal principles regarding youthful offenders’ moral culpability and capacity for rehabilitation, these restrictions do not apply for person who were under the age of 21 at the time of sentence. As such, persons aged under 21 at the time of sentence can apply for any convictions to be spent under the Spent Convictions Order category.
Where a conviction is spent, be it immediately, automatically or by Court order, the conviction no longer forms part of the person’s criminal history. In furtherance of this protection, the Act provides that:
Notwithstanding, in recognition of risk and public safety considerations, there are exceptions to these disclosure rules. Firstly, law enforcement agencies (including Victoria and interstate and Federal police, Commissioner of Corrections and Director of Fines Victoria) as well as Courts and tribunals may disclose convictions as part of disclosures of criminal records. Secondly, these agencies may also disclose a spent conviction or information relating to a spent conviction to a person or body, where the person or body is receiving the information for a specified purpose. Such specified purposes are set out in s.22 of the Act and Table 1, but broadly include:
The rationale for these exemptions is to allow bodies, agencies, and law enforcement to still make fully informed risk assessments of applicants, though the Equal Opportunity Act 2010 (Vic) does provide some safeguards by making it unlawful to discriminate against a person on the basis of a spent conviction.
Criminal records pose immense barriers to employment, housing, and accessing services for many people. The disclosure of criminal records causes significant disadvantage, discrimination, and harm to those who have them, and disproportionally impacts First Nations People. Prior to the Spent Convictions Scheme, the only avenue for avoiding a criminal record was via Diversion. However, the enactment of the Spent Convictions Scheme in Victoria now affords persons convicted of criminal offending an opportunity to distance themselves from these difficulties. The Act provides convicted persons three further opportunities to prevent or remove convictions from their criminal records, as well as clarity around when, and for what purposes, spent convictions will be disclosed. The Spend Convictions Scheme and its legislation has been strongly advocated for and long awaited by the legal profession and social services. By creating alternative avenues for avoiding criminal records on certain findings of guilt, the Act offers accused persons a greater chance at rehabilitation and moving forward with their lives following convictions for criminal offending.
[1] https://www.criminal-lawyers.com.au/sentencing/spent-convictions-10-frequently-asked-questions,
https://www.criminal-lawyers.com.au/practice-and-procedure/how-to-make-spent-conviction-application,
https://www.criminal-lawyers.com.au/legislation/spent-convictions-finally-here
[2] s.7(1) Spent Convictions
[3] s.7(2) Spend Convictions Act
[4] s.7(2) Spend Convictions Act
[5] s.9(1) Spent Convictions Act
[6] s.10(1) Spend Convictions Act
[7] s.10(2) Spend Convictions Act
“This content is for informational purposes only and should not be considered legal advice. Please consult a qualified criminal defence lawyer before making any decisions regarding your matter”
