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Non-conviction Means No Criminal Record? WRONG

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Law Scrabble TilesWritten by Annamiek Van Loon, Lawyer, Doogue + George Defence Lawyers

If you go to court and are sentenced but a non conviction is recorded (for example, you might hear “without conviction you are sentenced to a 9-month good behaviour bond”), you probably walk away thinking “great I don’t have a criminal record!”

This is completely reasonable to think but unfortunately due to Victoria’s laws, it is wrong.

Not only will an non conviction court result appear on your criminal record, but under current laws, it will appear there forever. But the wheels are in motion for the laws to change and all we can say is ABOUT TIME!

For years, our firm, the Law Institute of Victoria and other legal institutions have been involved in calls to the government to enact spent conviction legislation.

Victoria is the only state in Australia where older entries still appear when criminal record checks are performed today, for example when you are applying for a job, a special licence, citizenship, and so on. All other states have legislation in place which provides for when a conviction becomes “spent” – meaning, it is removed from your record.

Say 15 years ago you were in your first year of university and you’re at a social gathering and a joint is being passed around. You try it, like it, and you buy some marijuana. A few days later you’re caught speeding and the police find the bag of marijuana in your car. You plead guilty and receive a good behaviour bond without conviction. That court outcome is still on your record today. Too bad if you wanted to work in a field that performs criminal record checks as part of their recruitment process. Some employers might be forgiving – they’d see it was a long time ago, that no conviction was recorded, and that you have no further entries on your record. But for other employers, who have 100s of applications to get through, this is an easy flick into the “no” pile. This is discriminatory and unfair, and limits the rehabilitation of offenders and their place in society.

This is just one, hypothetical scenario. Another example, a real life one, can be found here:

https://www.abc.net.au/news/2019-08-27/spent-convictions-scheme-on-agenda-as-victorian-inquiry-reports/11447036

There is a bill that is currently before Parliament – the Spent Convictions Bill 2019. It can be found here:

https://www.legislation.vic.gov.au/bills/spent-convictions-bill-2019

TL;DR – here are the main points of the bill (NOTE – this legislation is NOT in force, this is what the bill currently looks like):

POINT CHIT CHAT
The bill defines conviction as a finding by a court that a person is guilty of an offence whether it is indictable or summary (serious or less serious), and whether or not a conviction is recorded. So, sentences recorded without conviction will still appear on criminal records.
This is not ideal and hopefully can be remedied down the track.
Convictions will be spent by the operation of the Act (if and when passed) other than those where a prison sentence of 6 or more months has been imposed, convictions of a body corporate or convictions for a prescribed offence. Certain offences and convictions can’t be spent.
There are different waiting periods for different kinds of convictions (e.g. Adult or child, whether conviction was from Children’s Court or not, seriousness of offence, type of sentence). If you are an adult convicted and sentenced to 5 months imprisonment for an indictable offence, you will have to wait 10 years for your conviction to be spent; if you are an adult and you are not convicted and placed on a community corrections order, you will have to wait 5 years for your conviction to be spent.
Your conviction will not be spent if, during the waiting period, you are convicted of an offence that is not minor (a minor offence is defined as one where you are discharged without penalty, or where the only penalty imposed is a fine of $500 and under, an adjourned undertaking (if there is a payment attached to the undertaking it must be less than $500), or a probation or youth supervision order when it comes to sentencing a child under the Children, Youth and Families Act 2005 (Vic). If you were convicted of an offence in 2015 which under the new laws would be spent in 2025, but you were recently convicted and sentenced for several driving offences and fined $1200 – that 2015 conviction is no longer on track to be spent in 2025.
Convictions that aren’t spent by the legislation can still be spent – you can apply to the court for it to order that your conviction be spent. Fear not! If you served say 12 months imprisonment for something many moons ago, you can ask a judge to order that this be removed from your record!
A conviction that is spent will not be revived by a subsequent conviction An entry that is spent and removed won’t re-appear if you are sentenced for something else later.

If passed, this legislation will take the heat away from those hoping old criminal record entries don’t get in the way of anything they’re hoping to do.

It will benefit a certain type of person – someone whose misdemeanor was a while ago, it was indeed a misdemeanor and not “too serious”, they haven’t offended since, etc. It doesn’t wipe away an old entry of someone who continues to offend.

The legislation, if passed, will also contain several offence provisions and penalties to ensure the purpose of the law is realised and upheld in practice. One example is it would be an offence to disclose information about a spent conviction without lawful authority or without the consent of the convicted person.

Whilst it appears a non conviction will still be a conviction under the Act, their ability to fade away on one’s record is welcome progress in Victoria and we eagerly await the day this legislation comes into force.

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