Spent Convictions

In New South Wales the Criminal Records Act 1991 enables certain convictions to become “spent”. A spent conviction means that:

• A person is not required to disclose to any other person for any purpose information concerning the spent conviction, and 
• A question concerning a person’s criminal history is taken to refer only to any convictions of the person which are not spent and
• When applying legislation a reference in the legislation to:
  • A conviction is taken to be a reference only to convictions which are not spent, and
  • A person’s character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions. 

What Offences Are Unable of Becoming Spent?

Not all offences are capable of becoming spent. The following offences are excluded under Section 7 of the Act from being able to be spent:

• Convictions for which a “prison sentence” of more than 6 months has been imposed,
• Convictions for “sexual offences”,
• Convictions imposed against bodies corporate (companies),
• Convictions prescribed by the Criminal Records Regulation 2019.

When Will a Conviction Become Spent?

A conviction will become spent on completion of the relevant “crime free period”. The crime free period for convictions imposed by all Courts (except the Children’s Court) is any period of 10 years after the date of conviction during which:

• The person has not been convicted of an offence punishable by imprisonment, and
• The person has not been in prison because of a conviction for any and has not been unlawfully at large. 

The “crime free period” for juvenile offenders (persons under 18 years of age at the time of conviction) is 3 years regardless of the sentence imposed. 

It is important to consider Section 5 of the Act which prescribes that the following findings are treated as “convictions” for the purposes of the crime free period:

• A finding that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction, 
• A finding that an offence has been proven, or that a person is guilty of an offence, and discharging the person or making an order for release of the person conditionally on entering into a recognizance to be of good behaviour or other conditions, 
• An order pursuant to Section 33 of the Children (Criminal Proceeding) Act 1987 other than an order dismissing a charge.