Since December 2021, individuals in Victoria have the opportunity to apply for spent conviction orders under the Spent Convictions Act 2021 (Vic). This Act outlines a system where convictions can either become spent automatically or through an application to the court.
Johnstone and Reimer Lawyers have been at the forefront of such applications to the Court and have had great success in obtaining just outcomes on behalf of clients.
Our office has made numerous successful applications on behalf of clients wishing for their convictions to be spent.
In one example, our client had served four years imprisonment for Armed Robbery as a young adult. Our lawyers were able to draft submissions and enclose a variety of character references and supporting materials which led to the application being granted and our client’s convictions becoming spent. Our client can now apply for employment without the stigma of a criminal record.
What is a Spent Conviction?
A spent conviction is one that no longer appears on a person’s criminal record. This means that individuals with spent convictions are not obligated to disclose them to others.
Ways Convictions Become Spent:
- Immediately Spent Convictions (Since December 1, 2021): Certain convictions are automatically spent without the need for a court application. These include:
- Convictions not recorded by a court (Sentenced without conviction).
- Qualified findings of guilt under specific sections of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
- Convictions for offences committed when the person was under 15 years old.
- Convictions with only fines imposed by the Children’s Court or foreign courts.
- Infringement convictions or foreign convictions equivalent to infringement convictions.
If a penalty with conditions is attached to a conviction, it becomes spent only after completing all conditions (such as a period of good behaviour on an Adjourned Undertaking).
- Convictions Spent on Expiry of Conviction Period: Convictions, other than serious convictions, automatically become spent when the conviction period expires. A serious conviction is defined as:
- A conviction resulting in a sentence of over 30 months’ imprisonment or detention.
- Conviction for a sexual offence.
- Conviction for a serious violence offence.
The conviction period is five years for offenders who were children or young offenders when the guilt finding was made, and 10 years in other cases. The period starts from the date of the court’s guilt finding and can be extended if subsequent convictions occur.
- Convictions Spent on Application (Since July 1, 2022): Serious convictions can be spent through an application to the Magistrates’ Court. A serious conviction is:
- A conviction leading to a sentence of over 30 months’ imprisonment or detention.
- Conviction for a sexual offence.
- Conviction for a serious violence offence.
The application can only be made after the conviction period has passed (five or ten years, depending on the circumstances).
Retrospective Application:
This legislation applies to convictions imposed before, on, or after the Act’s commencement date.
The Benefits of Spent Convictions:
The Spent Convictions Act 2021 (Vic) allows individuals with criminal convictions to avoid disclosing those convictions during criminal history checks. This can open up new opportunities for employment and promote rehabilitation. From 1 December 2021, an employer cannot discriminate against you (treat you unfairly or unlawfully) because of a spent conviction. An employer cannot ask about a spent conviction (unless an exemption applies). In most cases you do not have to tell an employer about a spent conviction.
How the Scheme Works:
- Convictions Spent Automatically: Some convictions are automatically spent by the sentencing Magistrate, particularly for minor offenses. This emphasizes the importance of preparing for Plea Hearings for a “without conviction” outcome.
- Convictions Spent Automatically for Young Offenders: Convictions for individuals under 15 years old, including serious offenses, are automatically spent.
- Convictions Spent Automatically After a Period of Time: For convictions not categorized as ‘serious,’ they become spent automatically after 10 years for adults and 5 years for children, provided there is no further offending and the imprisonment term was 30 months or less.
- Application for a Spent Conviction Order: Those with ‘serious convictions’ can apply to the Magistrates’ Court if they meet specific criteria, after the conviction period has passed.
The Effect of a Conviction being Spent
The effect of a conviction becoming spent is that the spent conviction does not form part of a person’s criminal record and they are not required to disclose the spent conviction. The spent conviction is also not revived by any subsequent conviction of the person. There are exceptions for information sharing amongst law enforcement or for the purposes of exercising a function or power under an Act. For example, a spent conviction may form part of the consideration for a Working with Children Check or Driver Accreditation with Commercial Passenger Vehicles Victoria and for other registration and licensing purposes.
How to Apply:
You can contact our office on 03 8658 0040 or book an appointment online here to speak with one of our experienced lawyers to determine your eligibility:
