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  • What kinds of offences will give me a criminal record?

    A speeding ticket is an offence, same as attempted murder, and negligent driving. But are they the same? Will they all be equally recorded in your Police/Criminal record history, and do they all attract the same punishments? Of course not.

    Not all offences are recorded in your police criminal history, especially those settled out of courts. If you are fined on the spot (Civil penalty) for an offence without an invitation to court or notice, it will not appear on your criminal record check in Australia.

    Does going to court give you a criminal record?

    If your offence does not require court attendance, then you cannot get a criminal record on your police check. Tickets, fines, license suspensions can also be issued by the regulating authority prerogative; these offences are not dealt with in court unless you choose to challenge them.

    Most of the offences attended by a court where you are found guilty will reflect in your police /criminal records. Some of the offences may be too serious that the following related to them will be revealed;

    • Convictions/Charges against corporate organisations
    • Sexually related offences
    • Traffic charges for which an individual is convicted
    • Sentences and Convictions the court gives you or for which you have been charged by an Australian police force
    • Pending court charges and offences related to the case

    However, if a court finds you guilty of an offence but chooses not to give a conviction, it becomes Spent and does not reflect on your police criminal records.

    Do Traffic offences give one a criminal record?

    Although the law may vary across the States and Territories in Australia, major traffic infractions and offences will be recorded against you in your police criminal records as traffic or driving offences.

    In NSW, criminal and traffic records have a separate database, except for major traffic offences. However, in Victoria, a traffic offence can result in a direct criminal conviction against you and appear on your police background check in Victoria.

    Generally, some of the “major offences” that will add a criminal conviction to your police records are;

    • Drink driving (PCA or DUI)
    • Negligent driving (when convicted in a court)
    • Driving with falsified documents
    • Driving while on suspension/probation
    • Guilty of a traffic offence during a "good behaviour" term
    • Police pursuit and damage to municipalities
    • Reckless driving
    • Driving with Drugs (not for medicine)

    Police may also engage their discretion even in "major traffic" offences. There are examples where driving over the speed limits of 45km/h is dealt with in court, but other times, via mail or notice.

    What about decriminalized offences?

    Offences may sometimes be non-uniform across the States and Territories in Australia. Possessing Marijuana in smaller quantities in South Australia is not a criminal offence. However, this same act in NSW may be settled with Police discretion rather than ending up in court. It is referred to as a "cannabis caution".

    Several other offences are also handled this way, and when they attract customer fines from the Police or other civil penalties, they will not be recorded in a nationally coordinated criminal history check.

    Can I avoid a Criminal record if my case ends up in court?

    If you have a strong defence/appeal, and you are found not guilty in court, you will not have a criminal conviction record.

    Even when you plead guilty to the offence, you may still avoid getting a criminal conviction.

    If the court awards you a "conditional release order without conviction" according to section 10(10)(a) dismissal, you will have no criminal record against you.

    Also, the court can find you guilty, but due to precedence of your records, decide to record no conviction against you. Therefore, you ‘escape’ the case without having a conviction.

    What criminal records are held by the Police?

    There is a special criminal record the Police keep; it is called the LEAP records. It contains all an individual’s involvement with the criminal justice system in a State.

    The LEAP records will still contain all records even where the individual was not found guilty by the court. Also, all diversionary programs, police fines and infractions will go into this record.

    Yes, the LEAP records are broader than the usual criminal records, the Police will not necessarily release the information if;

    • The magistrate finds you not guilty
    • You completed the conditions and the diversionary programs

    Do offences outside the judiciary give me a criminal record?

    The criminal record only contains offences handled within the jurisdiction of a legal court. Where you are not convicted by a legal court, there cannot be a criminal record against you. An offence or disciplinary measure given by a church, social organisation, or corporate bodies, where you were not charged or convicted by a legal Australian court “holds water” only within that organisation.

    Also, offences within your community or social groups not prosecuted by the police or an Australian court do not result in a criminal conviction.

    Do offences outside the country give me a Criminal conviction?

    With few exceptions, offences outside the country do not give you a criminal record within Australia. These offences are considered to be outside the jurisdiction of the Australian legal system.

    A traffic offence in Europe or a minor assault case in Africa will not show up in your Australian criminal history check or police records.

    Offences committed when working for international bodies abroad like commonwealth organisations may reflect in your criminal records.

    Also, cases of terrorism, international fraud, treason, international drug trafficking, and so on will reflect in a criminal record against you.

    Is a criminal record for life?

    When you get a conviction; there is usually a 10 consecutive years "waiting/rehabilitation" period before the offence is wiped off your record. It is known as the Spent conviction scheme, and the conditions may vary depending on the State/territories in Australia.

    Where the offence is prosecuted in a juvenile court or the conviction was as a child (10-14), the "rehab" period is lesser; (5) years.

    However, not all offences may qualify for the Spent conviction scheme or to be Spent. These exemptions are considered “serious offences”. Those old convictions will always show up on a police check. Such as;

    • Murder
    • Sexually related offences
    • Major Child violation and abuse
    • Multiple offenders
    • Major financial fraudulent conviction
    • Or where the conviction attracts sentence imprisonment of more than 6 months

    Wrapping Up

    The surest way to know of any convictions in your criminal history record is to apply for an updated national police history check. You can obtain one online via ANCC or you can approach your local post office or police station.

    If you apply online via Australian National Character Check (ANCC), you can submit your check online and the application is usually completed within 14 minutes. Majority of applicants who apply online get their checks within 24 hours with the remaining taking up to 15+ business days.

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