With the new spent convictions Bill of 2021 passed by Victorian parliament, individuals can have some old and less serious convictions completely removed from police criminal records.
It provides an opportunity for people who have even been convicted of some "serious" offences to "start afresh" and not have to worry about old and less serious offences when obtaining a national police background check in Victoria (VIC).
How to apply for a spent conviction in VIC
There are various ways an offence can become spent in the VIC; it depends on the nature, condition surrounding and “seriousness” of the offence.
If you have a court order or charge against you, it may be considerable to engage the services of an experienced criminal lawyer well versed in the system of criminal laws. It could well turn out to be the difference between having a conviction recorded or the offence automatically spent.
Here are the ways an offence can qualify as Spent under the Victorian legislation:
- Where they are Spent immediately;
There are three basic ways that an offence can be automatically "spent". These criteria are;
- If the magistrate or presiding judge decides to exercise their rights under the Sentencing Act of 1991, to not record a conviction against the individual, even if there is a finding of guilt. The offence becomes Spent automatically.
- If the Magistrate considers the offence minor under State laws and the individual deserving of "leniency", the court may issue a no-conviction finding on the charge.
- If a court convicts an individual under 15 years of an offence, it becomes automatically spent. This bracket also includes "serious" convictions like; violent, sexual offences or a youth sentencing of over 30 months.
- If a juvenile court convicts a person less than 18 years of an offence, and a fine is imposed, the offence becomes spent automatically and therefore not disclosed on your criminal records or a police check result.
- A trial under the special hearing of the mental impairment and Unfitness Act of 1997. A person found guilty but can’t stand trial will have their conviction spent immediately.
- Convictions Spent after a period elapses
For some offences, usually where the court imposes more than a fine, and it is not a "serious one", the conviction becomes automatically Spent. There are certain conditions that the individual must meet before these offences are considered Spent.
The conditions are usually;
✔ 10 years of "crime-free period"; for a conviction by an adult court
✔ 5 years of "crime-free period"; for a conviction by a juvenile court
It follows that;
On the explicit order of the Magistrate
- The individual must not get another conviction within this period, or else the period restarts
- The term of imprisonment imposed is not more than 30 months (Should be 30 months or less)
- The conviction does not lead to further reading
Here, only applications for convictions (serious) sent to the Magistrate or a court can be granted as "spent". These matters are dealt with in court.
If you are convicted of a “serious offence”, you can apply to a Magistrate court to have the offence expunged from their police criminal records.
However, your application must meet some requirements before submission to the Magistrate.
✔ The person was a young offender when the conviction was given - under 21 at the time of the conviction.
✔ The person was an adult when he got convicted, and it follows that;
✔ No term of imprisonment is imposed for a serious, violent or sexual offence
✔ If there is a sentencing, it is not more than 5 years, irrespective of the offence.
It follows that;
- Applications should not be made unless the above requirements are met (all conviction periods have expired).
- There should be no further application within two years if a previous application is refused. However, where new information regarding the conviction becomes available, a supplementary one can follow.
- The content application, requirements and notice of the application must be made available for the Attorney General and the Chief Commissioner of Police immediately where possible.
- If neither the A.G nor the Chief Commissioner can apply directly, it can go on without a hearing.
- The hearing is usually assumed to be a closed one.
What conditions do the Magistrate courts consider in granting an offence as spent?
According to the Spent convictions Acts of VIC, the matters or criteria to assess the eligibility of a conviction includes;
✔ The nature, circumstances and seriousness of the offence
✔ The final consequence of such offence on any victim it may have related to
✔ The personal conditions of the applicants
✔ The age of the applicant and how it applies to the offence committed
✔ Any evidence of rehabilitation demonstrated
✔ Possibility of liability to the public and the community
✔ Unique factors that may affect persons of Aboriginal or Torres Strait islanders
What are serious convictions?
So far, we mentioned the different circumstances that can easily qualify an offence as Spent automatically. And one of them is that the offence is a "less serious" one.
Serious convictions as defined in the Criminal Act of VIC are;
✔ Convictions that attract a prison term of more than 30 months, also includes youth detentions.
✔ Conviction of sexual offences and other related crimes
✔ Convictions in a serious violent offence
What does the Spent convictions scheme do for an individual?
National police criminal history checks are mandatory for some roles, and without it, others with a "cleaner record" are preferred. Some potential employees may suffer at the hands of employers, licensing offences or accreditation bodies because they have certain convictions in their criminal records.
Imagine what it would be if these records/convictions get wiped off an individual's criminal records.
✔ If any of your conviction qualifies for the spent scheme, you are under no legal obligation to reveal details to anyone.
✔ Furthermore, individuals will only be assessed based on the records in their police check not spent (if any)
✔ The details of a Spent conviction will not be disclosed to the public by an official without a court order. In VIC, unlawful disclosure is tantamount to 40 penalty units.
People in Victoria can apply for jobs, volunteer services, or licenses without discrimination. A possible drawback of a "failed" police check result.