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  • Home Resources & Technical Articles Pre-Employment Screening Topics National Police Checks Does a guilty with no conviction recorded show up on a police check?

    Does a guilty with no conviction recorded show up on a police check?

    When a court finds you guilty of an offence, it does not mean you are automatically convicted of the crime. You will only be convicted of the crime when the Court sentences you depending on the legislation in the jurisdiction where the offence took place.

    Often, people can’t get a hold of what is what; they still consider a finding of guilt the same with a conviction.

    Can the Court find me guilty with no conviction?

    At the hearing, the Court will find a person guilty of all/part of the charges if;

    • The evidence is irrefutable, and the Court considers it sufficient, or
    • The accused enters a guilty plea.

    Regardless of how the finding of guilt comes about, the Court will then enter sentencing. However, not all sentencing results in the court recording a conviction. For some cases, the Court will not record a conviction but may impose other conditions. This is known as a finding of guilt without conviction.

    The Court not recording a conviction does not mean that it is not entirely convinced of the offence. It just means the Court offers the offender an opportunity at rehabilitation. The Court will record no conviction for peculiar circumstances, especially where they consider the recording of a conviction to be harsh.

    Will a no-conviction offence show in a Police Check?

    Yes, a guilty with no conviction recorded or “finding of guilt without conviction” will show up on a police check.

    All;

    • Court sentences,
    • Convictions, and
    • Verdicts about an offence that the court records in the criminal history will appear in a Police Check.

    The Court will still record your finding of guilt even when it does not issue a conviction.

    The finding of guilt will remain in a Police Check until special legal pardons like the Spent Convictions Scheme erases them.

    Why does a ‘no conviction’ show up in my Police Check?

    To understand why the no conviction order appears on your criminal history check, you must understand the meaning of a Police Check.

    A police history check is a nationwide assessment in Australia that contains a person's criminal history. All information in your criminal history is revealed to the public (requesting party) through a police check. However, disclosure of criminal records follow the;

    • Privacy Act,
    • Any other Disclosure and Use policies the State stipulates.

    Since the Court finds you guilty of the offence (facts and details are proven), it forms part of your criminal records. There is a difference between the Court finding you guilty of an offence but recording no convictions and granting a case dismissal.

    What other offences appear in a criminal record check?

    There are other criminal records that the criminal record check discloses asides from a finding of guilt. Generally, a court will only reveal details of all matters settled in a court. It means violations needing infringement notices, fines, traffic tickets, and so on will not appear on the check.

    The offences that the police character check reveals fall under this category;

    All other violations given outside the Court do not appear in a criminal history check but maybe on the records of other agencies. So, there is no need to worry about a minor traffic infringement or ticket showing on your police check certificate if there was no related court conviction.

    Why does a Court issue non-conviction sentencing?

    There are lots of reasons for a court to issue a non-conviction sentence. However, everyone should know that it can be difficult for the Court to grant you such sentences. Having a finding of guilt instead of sentencing (where you cannot defend your innocence) can make lots of difference.

    Generally, the Court imposes a non-conviction sentence on an offender to mitigate the consequences of a conviction.

    Having a conviction in your criminal history can be abhorrent to most employers or agencies in Australia. Also, certain convictions can limit your chances for a license, getting Visas or even migrating to another county.

    Most people try to avoid a conviction in any legal way they can afford because there is almost no going back.

    The Court will also, in many circumstances, hesitate on recording a conviction against a first time/young offender. Knowing the damaging long-term effects such records can have on the person, the Court will seek alternative sentencing. And this is more likely where the offence is a minor one with less impact.

    What factors does the Court consider before issuing a no conviction order?

    If a defendant;

    • Thinks the evidence against them is overwhelming (to lose the case), or
    • Pleads guilty to an offence;

    They will explore all other programs or orders that will mitigate or exempt them from a criminal record. And one way to do this is to apply for a no conviction order.

    The Magistrate will only grant a non-conviction order where they consider it appropriate sentencing for the matter. The Court will consider the following factors before giving a no conviction order;


    • The severity of the offence

    The most significant influencing factor for getting a no conviction order is the severity of the offence. While minor crimes like;

    Aggravated offences can be complex to deal with.

    The Court will only issue a no conviction order for a minor offence having little impact on the victim. Indictable crimes rarely get a no conviction order, except if the Court imposes a summary hearing.


    • Prior records

    The criminal history of a person is a significant factor in their future sentencing and court orders. The no conviction order is sooner granted to an offender with a clean record than one with a notorious/disturbing pattern of offending.

    The Court understands the impact a criminal record can have on a young person and explores other sentencing options.


    • Extenuating circumstances in the offence

    The Court may also consider other factors that will possibly limit the impact of the offence. An example could be where the offender committed the act out of duress or self-defence. The Court will also consider other extenuating factors to the crime.


    • The remorse or commitment not to re-offend

    The Court will consider other mitigating actions the offender makes to reduce the impact of the offence. Where the offender shows remorse for their actions through any of;

    • ✔ Paying damages,
    • ✔ Issuing apologies,
    • ✔ Committing to any corrective measures,
    • ✔ Willingness to any court settlements,
    • ✔ And other factors the Court deems relevant.

    • The socio-economic impact of the offence

    Certain convictions can put a person's career and prospects to a detriment. A professional driver who gets a court conviction for traffic offences can have their career greatly disturbed. Most employers will not employ a driver with a criminal record, primarily when related to a traffic offence.

    Is a no conviction sentencing the same as a Spent Conviction?

    The no convictions sentence is very different from the Spent convictions scheme in many ways.

    Firstly, spent convictions are expunged from a police check after a certain time period as stipulated in the legislation.

    The spent convictions apply to certain eligible offences under the scheme; it will erase such crimes from the individual's criminal records.

    The Spent Convictions Scheme applies to almost all offenders across Australia who have demonstrated a potential to be of good behaviour onwards. However, this good behaviour must be provable to the Court through their clean conviction records, Police records and other recommendations over the "waiting period".

    If the offender shows/maintains Good Behaviour during this waiting period, the Court may remove the "eligible" offence from their conviction records. Usually, this waiting period is;

    • Ten years for adults, or those convicted by courts other than a Juvenile court.
    • Five years for Juveniles (3 in NSW), or those convicted in a Youth Court.

    In some instances where the legislation stipulates it, only the court (Magistrates) can issue non-conviction sentencing, and it must be given as a form of sentencing.

    Can non-conviction sentencing be spent?

    Yes, a non-convictions sentence can be removed from your criminal records after the conditions are satisfied. The offence will be taken off your record as long as you complete the waiting period without re-offending.

    Will I have to disclose a non conviction sentence?

    Yes, only if you asked for such records. However, if you asked about having a “Criminal Conviction”, you can say no.

    Having a conviction record on your criminal history check can hamper your chances of getting certain privileges. However, if you have a no conviction offence, you do not have to disclose this information except if the other party specifically requests it.

    If you have no convictions on your criminal history, you can claim to have no criminal records. However, if you are specifically asked for all of your criminal violations or records, you must include your guilt finding.

    In most cases, you may only be asked for any previous ‘conviction’. If you are only requested of your conviction records, then that is just what you should reveal.

    However, you must disclose all court records or verdicts regarding your offence for some cases or parties.

    What cases will you need to disclose a no conviction sentencing?

    There are some cases where the legislation obliges you to reveal the details of a no conviction sentencing. It includes;

    • When applying to sensitive sectors or agencies that deal in sensitive roles e.g. working with children checks,
    • When applying for Visas and foreign permits,
    • When applying for insurance policies,
    • When applying for Commonwealth roles.

    How does a conviction affect a person?

    Court verdicts that find you guilty of an offence are always recorded in your criminal convictions. And with employers or decision makers, your criminal history will be scrutinised for certain purposes or applications.

    The criminal history of an individual is revealed through check certificates and results like the national police check result.

    A Conviction record can affect your prospects in situations like;


    • Job applications

    Most employers now include criminal history checks as a requirement during recruitments. It is used as an assessment aid for the suitability of the person for the applied role.

    Certain convictions in your records can affect your chances of getting the role you have applied for.

    Volunteer organisations and groups also enforce strict scrutiny and check for the people they admit as volunteers. These conditions are tougher when the job involves sensitive activities like;


    • Getting a license

    Obtaining specific licenses can be extremely difficult, especially when you have a criminal record. The State legislation may exempt people from owning the following permits if they have certain convictions;

    • ✔ Firearm licenses, and
    • ✔ Those relevant to sensitive roles (by legislation).

    • Child adoption

    It is the dream of many couples or single parents to adopt kids. Sadly, having a criminal conviction can affect your goal.

    The legislation may not allow you near an adoption agency if you have certain convictions in your criminal records.

    If the conviction was in a child-related offence such as;

    • ✔ Domestic violence,
    • ✔ Child abuse and maltreatment,
    • ✔ Sexual molestation,
    • ✔ Assault,
    • ✔ Public misbehaviours and violations,

    • Seeking legal programs

    The Magistrate may decide against granting you specific pardon programs in future if you have a criminal record. Criminal records are one of the factors the Court considers when giving mitigation sentences to an offender.


    • Getting Insurances or Mortgages

    The insurance or financial sectors may also look into your criminal records before granting you their services. The banks or other agencies may refuse you mortgages or loans if you have certain convictions in your criminal records.


    • Immigration or Visa

    The process of getting a visa can be more complex if you have a criminal record. Other regions or countries are getting more sceptical and wary of allowing people with criminal records into their sovereign lands.

    No Conviction vs Conviction Sentences

    In the end, having the Court find you guilty of an offence has no advantage. As much as possible, you should desist from any criminal acts or violations of Australian legislation.

    Yet having a no conviction sentence can be the difference between you and another candidate for a job being able to obtain the job.

    How can I obtain a criminal history check?

    Individuals

    If you are an individual then you can obtain a criminal history check certificate online via Australian National Character Check’s online police check application form. The results are dispatched via email.

    Business and Enterprise Customers

    Business and Enterprise customers are able to sign up to ANCC’s business portal where they can order, manage, track and view candidates’ criminal history check results on their business portal. Organisations will undergo a process for approval prior to being granted access to ANCC’s business portal.

    ANCC sends an invite to the applicant to complete their criminal record check online and handles the application and informed consent form. Contact ANCC’s business and enterprise partnerships team today to enquire about setting up a business portal for your organisation.

    Sources

    Legal Aid Queensland (Criminal Convictions) - https://www.legalaid.qld.gov.au/Find-legal-information/Criminal-justice/Criminal-court-process/Criminal-convictions

    Legal Service Commission of South Australia (Effects of Criminal Convictions) - https://lawhandbook.sa.gov.au/print/ch13s08.php

    Judicial Commission of NSW (Guilty Plea to be Taken into Account) - https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/guilty_plea.html

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