Spent Convictions – An Overview
Spent convictions can be extremely valuable to clients charged with criminal offences who may hope to avoid a conviction for employment, travel or other reasons.
A spent conviction is an order made that the conviction for an offence, either on a plea of guilty or a finding of guilt after a trial, be ‘spent’. In other words, it is an order that no conviction be recorded, or that the conviction already recorded be removed.
The consequences of not obtaining a spent conviction
In the absence of a spent conviction order, a conviction will ordinarily be recorded when an adult pleads guilty to, or is found guilty of, a criminal or traffic offence. Convictions will usually appear in ‘background checks’, including national police clearances.
The situation is different for children. For information on convictions for children, please read Appearing in the Children’s Court.
Value of a spent conviction
Criminal and traffic convictions may have to be disclosed in certain circumstances, including employment, immigration, insurance and regulatory applications. Spent convictions, in most situations, do not have to be disclosed. From our experience, the most common reasons for individuals wanting to obtain a spent conviction order are:
- They do not want to be prejudiced when applying for employment; or
- They intend to travel to countries that have strict immigration requirements, most commonly the United States of America and Canada.
Declaring a spent conviction
The Spent Convictions Act 1988 provides that a person does not have to disclose spent convictions in circumstances where they have been asked to declare convictions. It also provides that individuals cannot be discriminated against on the basis of having a spent conviction. In certain situations, however, spent convictions may have to be declared and can be considered. This includes situations where a person is applying to join the police force, become a teacher or to obtain a security licence.
Courts considering subsequent charges will always be able to view and consider offences charges that were the subject of spent convictions.
Applying for a spent conviction
There are two ways to apply for a spent conviction:
- Firstly, and most commonly, an application can be made in court while a person is sentenced for a criminal or traffic offence; and
- Secondly, an application can be made to have a past conviction spent.
Spent convictions can be granted for a number of offences at once.
Spent convictions at sentencing
Under the Sentencing Act 1995, a Court must not grant a spent conviction order unless it considers that the person:
- Is unlikely to commit such an offence again; and
- Ought to be relieved of the adverse effect of the conviction, bearing in mind their previous good character or the trivial nature of the offence.
Whether or not a Court is likely to be satisfied of those matters will depend on a number of factors, including:
- The nature and seriousness of the offence;
- The person’s prior history of offending (if any);
- The person’s personal circumstances, including the reason or reasons why they wish to be relieved of the adverse effect of the conviction; and
- Any mitigating factors, including acceptance of responsibility and efforts to rehabilitate.
Broadly speaking, courts will not grant spent conviction orders for serious offences, to individuals with prior convictions or for traffic offences, which do not fall under the Criminal Code. Courts are also generally very reluctant to grant spent conviction orders for offences relating to drug or alcohol use where the individual has not addressed those issues prior to sentencing.
Applying to have a past conviction spent
A person with a prior conviction may make an application for that conviction to be spent. In this respect, the law divides convictions into two categories:
- Serious convictions; and
- Lesser convictions.
A person wishing to apply to have a past conviction spent, whether serious or lesser, must wait for ten years from the date of conviction, or three years for certain cannabis offences.
If a person is convicted of another offence (including an offence in another State or Territory) after the offence that they wish to be spent, the waiting period starts again from the date of that subsequent conviction, unless the subsequent conviction attracted no penalty or a fine of $100 or less.
For example, if a person was convicted and fined $500 in May 2004 for a non-cannabis offence and was then subsequently convicted and fined $200 in October 2012 for another non-cannabis offence, that person would have to wait until October 2022 to apply to have either the May 2004 or October 2012 convictions spent.
Past convictions – Serious convictions
A ‘serious conviction’ is defined as a conviction for which a person was sentenced to imprisonment for more than one year, or received a fine of $15,000 or more. Imprisonment, for these purposes, includes immediate, suspended and conditionally suspended imprisonment.
A person applying to have a serious conviction spent must make an application to the District Court of Western Australia. This application would be heard by a Judge, who has the discretion to grant or refuse the application. In doing so, the Judge would have to consider, among other things, the nature and circumstances of the offence for which the conviction was entered, the person’s personal circumstances and their reasons for wanting the conviction to be spent.
Past convictions – Lesser convictions
A ‘lesser conviction’ is defined as a conviction other than a serious conviction. In other words, it is a conviction for which the person was sentenced to a term of imprisonment of one year or less, a fine of under $15,000 or another type of order, including community-based orders.
An application to have a lesser conviction spent is made to the Commissioner of Police, who must grant the application if they are satisfied that the conviction is a lesser conviction and that the applicant has waited for the necessary period of time.
Applications for spent convictions can be complicated and may require a considerable amount of time to prepare and argue in court. The effects of a conviction can be personally and professionally devastating, and may persist for a number of years. Given the effect that a conviction may have on a person’s current or future employment, seeking legal advice to help obtain a spent conviction is often money well spent.
If you have been charged with, or convicted of, an offence and you are concerned about what effect that it may have on your ability to work or travel, the team at Chelmsford Legal would be happy to help. We can provide advice as to the benefits that a spent conviction may have for you, your likelihood of being granted a spent conviction, how to put yourself in the best position to obtain a spent conviction and whether your spent conviction would have to be declared.
We also provide representation in all Western Australian courts to apply for spent convictions at sentencing and in the District Court to apply for past serious convictions to be spent.