The Spent Conviction Scheme protects a person from having their criminal record publicly disclosed under certain circumstances. When a conviction may not be publicly disclosed, it is referred to as a “spent” conviction. To be eligible for a spent conviction, you must meet certain requirements (e.g. you must not re-offend for a set amount of time after being found guilty).
The Victorian Parliament introduced the Spent Convictions Act in 2021. The scheme is expected to commence operation by 1 July 2022 at the latest. It is intended to help people who have previously committed an offence but have since rehabilitated. For example, having your criminal record protected from public disclosure may help you find employment or travel overseas.
If you are facing criminal conviction or have been criminally convicted, a specialist criminal lawyer may be able to help you protect your criminal record from being publicly disclosed.
Please note that this article is not legal advice. It only presents general information.
What is the Spent Conviction Scheme?
The Spent Conviction Scheme is a set of laws that dictate whether or not a conviction may be publicly disclosed on a person’s criminal record.
In some circumstances, if a person does not reoffend for a period of time after their original conviction, their conviction will be “spent”. This means that the conviction will no longer be publicly disclosed on their criminal record.
Essentially, less serious convictions (i.e. a sentence of 30 months or less) are automatically spent when certain conditions are met (i.e. a crime-free period). Where the scheme does not automatically apply (i.e. a sentence of more than 30 months), a person might be able to apply to the Magistrates’ Court to have their conviction declared “spent”.
The scheme works both retrospectively and prospectively, meaning that it applies to both convictions imposed before and after the scheme commences.
When Does the Spent Conviction Scheme Automatically Apply?
Convictions are automatically “spent” for anyone who has received a:
- Conviction for an offence that was committed when the person was under the age of 15; or
- Infringement conviction.
In these circumstances, the conviction will be automatically spent on the day on which the person is found guilty. No crime-free period is required.
Additionally, convictions are automatically considered “spent” for anyone who has received a:
- Conviction with a imprisonment or detention of 30 months or less,provided:
- For adults, they have not been convicted of another offence for 10 years after the conviction.
- For a child or young offender (anyone under 21 at the time of sentencing), they have not been convicted of another offence for 5 years after the conviction.
In these circumstances, the conviction will be automatically spent on the day that the 10 or 5 year period expires.
It’s important to note that a conviction does not become spent until the convicted person has completed all the conditions attached to the penalty.
Can I Apply to the Court for a Spent Conviction Order?
A person might be able to apply to the Magistrates Court to have any other conviction declared “spent”.
A person may apply for a spent conviction order if:
- They were convicted of a sexual offence and no term of imprisonment was imposed.
- They were convicted of a serious violence offence and no term of imprisonment was imposed.
- They were sentenced to prison for no more than 5 years.
- For an adult, they have not been convicted of another offence for 10 years after the conviction
- For a child or young offender, they have not been convicted of another offence for 5 years after the conviction.
A person can apply for a spent conviction order in relation to more than one conviction. However, if the Magistrates’ Court refuses to make a spent conviction order, the person cannot re-apply for at least 2 years (unless they can produce new information in support of their application).
Can My Spent Convictions Still Be Disclosed?
Even if you have a spent conviction, it may still be disclosed to certain bodies and people for specific reasons, including:
- The police;
- The courts; and
- Other law enforcement agencies.
Spent convictions may also still show up on your police record check if:
- The check is conducted for a particular type of employment (e.g. working with children); or
- The check is conducted in order to hold certain licenses (e.g. firearms license).
Outside of these circumstances, spent convictions should not be disclosed on your criminal record.
What Date Does the Spent Conviction Scheme Apply From?
From 1 December 2021, spent convictions will no longer show up on a police record check except for the reasons noted above (see “Who Will be Able to See My Spent Convictions?”).
From 1 July 2022, a person may be able to apply to the Magistrates’ Court to have their conviction spent if:
- The scheme does not automatically apply; and
- They have met the legislative requirements (see above “Can I Apply to the Court for a Spent Conviction Order”).
How Can a Criminal Lawyer Help Me Attain a Spent Conviction?
If you have been accused of an offence, an experienced criminal lawyer may be able to help you attain a non-conviction or minimise your sentence to 30 months or less. Doing so would result in your conviction being immediately spent and protected from public disclosure.
Alternatively, if the scheme does not automatically apply, a criminal lawyer may be able to help you make an application to the Magistrates’ Court for a spent conviction order. To apply for a spent conviction order, you must make a written application setting out information in support of your rehabilitation. The application must be set out in a particular format and served on both the Attorney-General and the Chief Commissioner of Police. You may also have to attend the Magistrates Court for a hearing to determine the application.
If you would like to maximise your chances of attaining a spent conviction or apply to the Magistrates’ Court for a spent conviction order, please call Sher Criminal Lawyers immediately. Our team of criminal defence experts is well-informed in this new and emerging area of law. We frequently advise and represent clients in all kinds of criminal matters and have specialist knowledge of the Victorian Justice System.
Our specialist criminal lawyers are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices. Please contact us today.