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  • Are non-conviction sentences displayed on a police check?

    When the Court finds a person guilty of an offence, the usual routine is to sentence the offender according to the Penalties and Sentencing Act (or equivalent) of the jurisdiction.

    However, for some offences, the Court may decide to issue lesser or alternative sentences. Giving such alternatives depend on circumstances around the proceedings and the offence. One of such lesser sentencing is to grant a non conviction sentencing to the offender.

    For context, a “non-conviction” in this article refers to non-conviction sentencing where the Court finds you guilty of an offence, but does not record a conviction.

    Does a non-conviction sentence show up on a Police Check?

    Your non-conviction record will show up on your Police Check if the Court finds you guilty of the offence. It will be recorded as a disclosable court outcome (DCO) and will show as a "court finding of guilt."

    If the Court does not find you guilty of the offence, none of the records will show up on the Police Check. A no conviction sentencing, in this case, will mean you were issued a special dismissal.

    The fact that the Court did not record a conviction for your offence does not mean you are not guilty of the offence. A non-conviction sentence shows on your Criminal records and the Police Check if you are found guilty by the Court with no conviction recorded.

    On your Police Check, a non-conviction sentence will appear as a "guilty finding". A non-conviction will not show in your Police Check if the Court does not find you guilty of the offence.

    Your non-convictions sentences where you are found guilty of an offence show in your Police Check, and;

    • An employer/relevant party may use such records to assess you,
    • It may be used against you in another court proceedings,

    However, it is not part of your conviction records.

    What is non-conviction sentencing?

    This sentence means that the Court finds the person guilty of the offence but records no conviction on their criminal record. Non-conviction sentencing is quite different from conviction sentencing as the offender is acquitted of the offence.

    The Court usually grants non-conviction sentencing as a sentence of minimal impact for the offender. The Court will impose such a sentence if it considers routine sentencing "overboard" for the offence.

    Furthermore, not all offences/offenders can be granted a non-conviction sentence. The Court will only give a non-conviction sentence to satisfy the conditions stipulated in the legislations for bonds and special orders.

    • Good Behaviour Bonds Dismissal

    The Court may issue a sentence dismissal if the offender adheres to a Good Behaviour Bond. In NSW, such programs are called Section 10 Crime sentencing dismissals, including specific conditions the offender must obey.

    Section 10 dismissals will not show in a Police Check once the bond period is over. Depending on the jurisdiction, Bond periods can last between 12 months to 3 years. The offender must adhere to all conditions of the Good Behaviour Bonds.

    Does a non-conviction order make any difference in your Police Check?

    Even when it shows up in a Police Check like all other convictions, there is an advantage to having a non-conviction record.

    With a non-conviction record, you can reply negatively to a question about having a past conviction. Technically, a conviction record is severer than a common finding of guilt.

    What shows up on a Police Check?

    The information displayed in a Police Check is specific to an individual, based on their dealings with Australian law. The criminal history check will disclose all the releasable records of a person (DCOs), per the disclosure legislations of the jurisdiction.

    The criminal history check reveals all criminal convictions and guilt findings issued by a Court. If there are disclosable records from Australian Youth records, they will show up as well.

    The information released on a Police Check can be grouped into the following categories;


    • Criminal Convictions, including suspended sentences

    All criminal offences that the Court convicts you of automatically enters your criminal record. It does not matter how severe the violation is or which Court gave the Conviction. This record also includes suspended sentences.

    Your theft convictions will show on a Police Check as well as any other conviction that was handed in a court. However, a case will not show on the check if;

    • If the matter was settled out of Court, or
    • Through bonds or other court orders, and
    • The Court did not record a guilty conviction for such an offence.

    • All traffic-related criminal offences

    Your traffic offences are not only limited to your traffic records. If the Court issues a conviction for your traffic offence, it will enter your criminal record. The only traffic violations that don't show up in your criminal records are those settled on infringements and had no associated court hearing.


    • All findings of guilt where the Magistrate issues a “no conviction”

    All criminal offences that the Magistrate finds you guilty of enter your criminal records. However, the Court may not record it if it sentences you based on special orders.

    Considering other factors, the Court can find you guilty of an offence but not convict you of the offence. Such records will appear on the Police Check in their original form as a finding of guilt.


    • Pending charges

    The Court will include an individual's pending charges in their criminal history where it considers it necessary. These charges include cases that are still before a court and those that a prosecutor has charged the person.

    The pending charge may be more grievous if the charge is for a serious (indictable) offence under Australian law.

    What does not show up on a Police Check?

    Not all offences will appear on your criminal record check; the Check only includes offences that interfere with the Australian criminal laws. All other violations do not enter a police history check.

    Some of the offences or violations that do not show on a criminal record check are;


    • Charge dismissal

    If the Judge/Magistrate dismisses a charge, it will not appear on a criminal record check. All dismissed charges are treated as a no conviction record; since the Court did not issue a sentence or find someone guilty of an offence.


    • Offences of laws outside Australian laws

    Religious, Cultural, or Community offences cannot be treated in an Australian Court unless it contradicts the Constitution or Commonwealth or State or Territory laws. If an international non-Australian court finds you guilty, it does not enter your criminal records in Australia in the majority of circumstances.


    • No finding of guilt

    The Magistrate will discharge and acquit an offender if they find them not guilty of all the charges. Where the offender is pronounced free by the Court, they have no record whatsoever of that case on their criminal record.


    • Matters settled on infringement.

    Australian laws allow some minor offences to be settled via infringement notices, tickets and other forms of settlements. If the offender does not contest such infringement notice in Court, there will be no court proceeding, and such matter can be settled on the spot and will not show up on a criminal history check.

    Can I get non-conviction sentencing?

    The Court can issue you a non-conviction sentence if they consider your offence deserving of such orders. Asides from the non-conviction order, the Court can commit the offender on more lenient sentences or a sentence dismissal.

    A Magistrate’s decision to issue a non-conviction sentence must not contradict the relevant legislation.

    Generally, a Court will only issue a non-conviction order when the offence is;


    • A minor offence with little impact

    Of course, severe offences like Rape, Fraud offences, Aggravated assaults and so on will not qualify for such orders. The Magistrate will only consider non-conviction sentencing where the offence is minor. The Magistrate must ensure that the sentence is an appropriate action for the violation. And they may impose other conditions in place of a penalty.


    • The Criminal history of the offender

    Repeat offenders hardly receive a mitigating sentence for the offence. The Magistrate will likely issue less severe sentencing where the offender is a first time or young offender.

    Repeat offenders are complicated to deal with; issuing a non-conviction sentence will not accurately reflect on their crimes. Re-offending is an indication that a person is not sorry for their offence and may re-offend in future.


    • Factors that lessen the effect of the crime

    The Magistrate may also consider the “excuse” of the person to commit the crime.

    For example, a person pushed a person out of the way suspecting a danger. The victim may charge the defendant for a common assault.

    While the person may be guilty of the assault, the Court may consider the suspicion of danger as an extenuating factor.

    Other extenuating factors include;

    • defendant acted out of self-defence,
    • offender acted out of compulsion,
    • offender was not mentally sound at the point of the incident.

    The remorse or commitment not to re-offend

    The Court will consider it a mitigating action if the offender shows remorse or a make-up. It includes all activities where the offender attempted to reduce the impact the offence had on the victim.

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

    Can a non-conviction sentencing order become spent?

    Yes, your finding of guilt can be erased from your criminal records if;

    The Spent convictions scheme allows certain offences to be erased from a person's criminal records. However, the person must satisfy a reasonable behaviour period, usually lasting 10 years for adult offenders.

    Not all offences are eligible to be spent under the scheme. Only convictions that;

    • ✔ Did not incur more than 30 months imprisonment as punishment,
    • ✔ The waiting period elapses without the offender re-offending,
    • ✔ The offender has satisfied any other condition and special court penalty for the matter.

    What is a waiting period?

    It is a consecutive number of years an offender must observe without re-offending for their offences to become spent under the law.

    It is;

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

    Do you need to reveal your non-conviction sentences?

    Some applications or licenses will require you to disclose these records either through a Police Check or other background checks.

    However, if you are asked for any previous conviction, you can deny it. A non-conviction does not equate to having a criminal record, except the court issues a "guilty finding".

    Can a Non-Conviction Record affect me?

    A non-conviction record will only affect you depending on the kind of records the other party needs. Some applications or roles may require you to disclose your conviction history. For such requirements, you are "criminally free".

    However, if the request is more critical than a conviction record, it may also request your non-conviction records.

    Yes, some applications can assess you by your non-conviction records if it is relevant to the purpose.


    • Working in a Child / Vulnerable role

    Such sensitive positions like those for working with children checks demand candidates with the "cleanest" records as workers. Since some guilty findings are hidden in the non-conviction records, the organisation may mandate such records in their recruitment policies.


    • Child Adoption

    Adopting a child in Australia is a complex process; it requires lots of checks, inspections, assessments, and so on.

    One of the many records for assessment is the non-conviction records of the would-be parents.

    The agency must assess the applicants by their Conviction and non-conviction records.

    What conditions does the Court include in non-conviction sentencing?

    If the Court does not give a conviction or similar penalties on an offender, it will likely include conditions to rehabilitate them.

    The type of offence, may determine if the court imposes a;

    • Community Order,
    • A drug rehabilitation program,
    • Alcohol intervention programs,
    • Educational programs to rehabilitate them,
    • License suspension for the Bond duration.

    How can I obtain a national criminal history check?

    Individuals

    If you are an individual, you can obtain a national criminal record check certificate online via Australian National Character Check’s 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.

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