How to Make a Spent Conviction Application
The article How to Make a Spent Conviction Application is written by Tyson Manicolo, Associate, Doogue + George Defence Lawyers.
Tyson was admitted to practice in 2016 and currently heads our Broadmeadows office. He previously worked for a generalist firm that deals with both criminal and civil matters but later decided to practise exclusively in the area of criminal law.
Tyson regularly represents clients in various Victorian courts. His expertise includes a broad range of legal matters including appeals, bail applications, and intervention orders, as well as writing submissions for people at risk of losing their firearm or security licences.
In March 2021, the Victorian Parliament passed the Spent Conviction Act 2021 (Vic). This Act will come into operation in 2021, although the exact date is not set at this point. The spent conviction scheme will allow people who have a conviction recorded against their name removed. There are some offences and penalties which will be automatically removed (see our previous article ‘Spent Convictions – Finally Here’ for a description of these offences). However, there are some offences and penalties which require an application to be made for the conviction to be spent. This article will explain how such an application can be made.
Which Offences/Penalties Need an Application?
You will need to make an application in the Magistrates’ Court for your conviction to be spent if:
- You were a child or young person when your conviction was recorded and the conviction was imposed under the Children’s Court Act 1973, the Penalties and Sentences Act 1985, the Children and Young Person Act 1991, the Sentencing Act 1991 or the Children, Youth and Families Act 2005; or
- Your prior is for a serious violence or sexual offence; or
- You were sentenced to a term of imprisonment of less than 5 years.
How Do You Make an Application?
If you decide to make an application for your conviction to be spent, you must complete and file an application form with the Magistrates’ Court. The application form must:
- Set out your full name,
- The conviction which you are applying to have spent,
- Information to demonstrate your rehabilitation,
- Other information prescribed by the Court.
You must serve your application on the Attorney-General’s office and the Chief Commissioner of Police. The Attorney-General and Chief Commissioner of Police have 28 days to notify the Magistrates’ Court if they intend on making submissions in response to the application.
The Magistrates’ Court will notify the parties if the application is to be determined with or without a hearing.
What Material Should You Provide to Support Application?
To improve your chances of successfully applying to have your conviction spent, you must provide evidence to the Magistrate which demonstrates your rehabilitation. The type of material that would assist includes:
- Character references/statements from family members and your employer. This will show the Magistrate determining your application that you are regarded as a productive member of the community.
- A letter from a counsellor or a psychologist demonstrating that you received treatment which was specific to your offence.
- Evidence of abstinence from drug use, such as urine screens, if your offending is related to drug use/addiction.
- Confirmation that you volunteer.
- Confirmation that you are associated with a sporting club.
- Depending on the complexity of the application, a current psychological report from a specialist forensic psychologist addressing the relevant issues and often being focussed on risk assessment.
- A submission relating to the earlier charges and any issues of law or fact that need to be highlighted or addressed.
Many of these applications will hopefully be fairly straight forward. In those cases you may not need the assistance of a lawyer.
We understand that the circumstances which lead to people having a conviction vary. We are sympathetic to the fact that a conviction can burden people and be a source of embarrassment and lost opportunities. We do not think that people should be weighed down by their conviction.
You should get in contact with us if you want to have a lawyer assist you through the application process.