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  • Does a Section 9 show up on a police check?

    The police check is now one of the various assessment documents people must "satisfy” before getting a pass. Almost all employers, workers, agencies and many others use the Police Check as a standard means of factual information about legal/criminal histories. And it is not hard to see why.

    However, one of the biggest questions people face with criminal history checks is knowing what will appear and what does not. It is not a problem for those who are versatile with Australia's sentencing legislation and criminal disclosure laws.

    What appears on a Police Check?

    The Criminal record of a person makes up the complete details about the Police Check. It is a person's conviction history since they began to interact (adults) with the Australian judicial system.

    The police check will contain;

    • All Criminal Charges, including suspended sentences
    • All traffic-related criminal offences
    • All finding of guilt where the Magistrate issues no conviction,
    • Pending charges;
    • Court appearances.

    Therefore, if there is a court-convicted offence, it will reflect in the Police Check in Australia. And it includes even certain cases where the Court gives alternative sentencing.

    What is a section 9 dismissal?

    Section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows a Magistrate to grant alternative sentencing called a Good Behaviour Bond (GBB). It is issued when the Court;

    • Gives you a Conditional release order (GBB) or other programs instead of sentencing, and
    • Records a conviction against you.

    Does the Section 9 dismissal show up on a Police Check?

    This program is called a Good Behaviour Bond and the duration is the bond’s period. For a section 9 bond, the Court will record a conviction against the offender. All dismissals similar to the conditions for a section 9 show on a Police Check in Australia.

    Before the Court issues a section 9 against the offender, it considers a lot of factors concerning;

    • The victim,
    • The defendant,
    • The circumstances of the offence,
    • Other factors relevant to the case.

    A Magistrate does not go about issuing section 9 dismissals to any “repentant” offender that asks for it.

    How long do section 9 dismissals last?

    The Court will issue a section 9, that the offender abides by all the conditions for the bond period. Only when the offender completes the bond period without re-offending will the Court fully allow the dismissal.

    Depending on the peculiarity of the case, the Court can issue a sentence 9 dismissal for up to 5 years. However, the Court also considers the safety and agreement of terms with the victim before granting a sentence dismissal.

    What happens when a conviction is recorded against you?

    No one likes a conviction record, and it can have far more damaging consequences than you think. However, before you receive a sentence, your lawyer should help you seek lesser court sentencing. And section 9 is an example of a lesser court sentencing.

    Unlike a section 10 dismissal, under section 9, the offender will have the conviction recorded against them.

    If the Court records a conviction against you;

    It appears on the Police Check

    The Police Check reveals all the criminal history of a person. Any legal body or person can request it and use it for assessment. Certain convictions on your record can be detrimental, though.

    Such records can be used in another proceeding.

    Another prosecutor can present your conviction history as evidence in another proceeding. Although not highly swaying, it can still be used against you in future references.

    May remain on your criminal records for life.

    The Australian criminal database keeps a criminal record of all residents and citizens of Australia. Some offences will remain on the criminal database for a life period. It means such violations may always come up in a Police Check subject to the spent convictions scheme of NSW.

    However, a Good Behaviour Bond will mitigate these effects, as it does not have an imprisonment sentencing.

    What conditions can the Court impose in Section 9?

    When granting a section 9, the Court will impose conditions that the person must follow. The Court will issue a section 9 dismissal only if they are sure it is a more suitable punishment compared to the imprisonment term.

    The program imposed in section 9 is to rehab and educate the offender in ways better than gaol.

    Some of these programs include;

    • ✔ Supervision by community corrections

    The Court can place an offender under the supervision of the Community corrections officer. These officers will remain in charge of them, guide and supervise them throughout their bond duration. However, only the community corrections can determine aspects of this bond.

    • ✔ Counselling and psychological evaluation

    The Court will suggest educative or psychological counselling and correction for offenders like;

    However, the offender must agree to complete the sessions before the dismissal is validated.

    • ✔ Rehabilitation programs

    The Court can add other rehabilitation programs where they feel necessary depending on the matter. If the Court considers the offender young and disoriented in the Australian laws, the Magistrate will issue such programs as alternative sentencing.

    Some others include the more popular programs like;

    • Traffic offender intervention program,
    • Drug intervention program,
    • Alcohol intervention.

    Is section 9 the same thing as a Spent Conviction Scheme?

    No, these are different terms that some people wrongly mix up.

    A Magistrate in NSW issues the section 9 dismissal following the Crimes (Sentencing Procedure) Act 1991 (NSW). It is;

    • Given before sentencing for the offence, and
    • Serves as an alternative to sentencing,
    • Issued by a Magistrate,
    • Complete with mandatory conditions the offender must follow.

    Spent Convictions Scheme

    The Spent convictions scheme applies primarily to minor offences across Australia, where the offender shows a willingness to live crime-free onwards.

    The offender will only have their convictions spent if they can demonstrate a period without having a conviction. This period the offender waits for their offence to become spent is called the "waiting period" or "crime-free" period.

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

    • 10 years for adults or those convicted by courts other than a Juvenile court.
    • 5 years for Juveniles, or those convicted in a Youth Court.

    Also, for a Spent conviction, the offence may have attracted an imprisonment term. However, the duration of the prison term must not exceed 30 months (Commonwealth). This period can vary depending on jurisdictions.

    Can I get a section 9 dismissal?

    The section 9 dismissal may not come quickly to offenders, and the Magistrate must be convinced;

    • The offender’s circumstances deserve it,
    • Sentencing the offender will be a harsher punishment,
    • The safety and security of the victim is not compromised,
    • The offence is eligible for such section dismissal.
    • Other factors the Magistrate deem relevant depending on the peculiarity of the matter.

    However, the Magistrate can easily grant a section 9 dismissal in the following case;


    1. First offenders and people with good characters

    The Magistrate may consider the naivety of such offenders about the Australian laws before issuing sentencing. Instead of subjecting them to the tortures of imprisonment, the Court will grant them a section 9 dismissal.


    1. Offenders with intellectual disability, mental health issues

    The Court will also consider the mental soundness of the offender. If the Court finds sentencing as a harsher punishment, it can issue a section 9 dismissal depending on the severity of the offence.


    1. Relatively minor offences

    The Magistrate is more likely to issue a section 9 dismissal for a trivial offence than for more serious ones. Serious crimes will likely attract fines or imprisonment terms - for example, a common assault case vs aggravated assaults.


    1. Where there is an extenuating circumstance

    The Court will consider some factors around the case before issuing sentencing. It includes cases that may have seemed reasonable, like; emergency, provocation, lack of understanding.


    1. The person is not likely to reoffend

    The Court is less likely to issue a section 9 dismissal to a repeat offender. The offender's history must not reveal a pattern of them re-offending in past convictions.


    1. The offender shows remorse.

    The Court may issue a section 9 dismissal where the offender made some amends for their damage. It includes cases where the offender;

    • Offers to cater for the medical bills,
    • Replaces the damaged item,
    • Issues letters of apology,
    • Claims full responsibility,
    • And other acts of remorse the Magistrate deems fair.

    Breaching a Section 9 dismissal

    If the Court grants you a sentence dismissal under section 9, you MUST abide by all the conditions. You can discuss conditions that may be impossible with your legal counsel in Court before the Magistrate issues the final verdict.

    However, faulting on a Good behaviour bond after the court grants it is a severe breach.

    Depending on the severity or circumstance of the breach, the Court will take the following action;

    Summon the defendant to Court

    The Court will summon the defendant to Court to answer the suspicion of a breach. After the hearing, the Court may decide to;

    • Decide to take no action,
    • Vary the conditions for the bond,
    • Impose further conditions for the bond,
    • Revoke the bond and prosecute the offender based on the original offence (Which will lead to harsher penalties).

    If the Court prosecutes the offender for the original offence, it will handle the matter like the Good Behaviour Bond never happened. It does not matter how long the breach duration is at the time of a resentencing.

    Also, the re-sentencing will appear on the defendant’s Police Check result and criminal records.

    How can I obtain a criminal history check?

    Individuals

    If you are an individual then you can obtain a criminal record check 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

    Section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) - https://legislation.nsw.gov.au/view/html/inforce/current/act-1999-092

    Criminal Records Act 1991 (NSW) - https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1991-008

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