What Does ‘No Conviction Recorded’ Mean? (Vic)
Many Australian states have ‘spent conviction’ laws. These laws allow convictions to become ‘spent’ after a period has elapsed, meaning the offender no longer has an obligation to disclose the conviction. Victoria does not have a spent conviction law. In Victoria, any finding of guilt is disclosed on the defendant’s criminal record even if they received a finding of guilt with no conviction recorded.
Courts have the discretion to find a person guilty with no conviction recorded
Under section 8 of the Sentencing Act 1991, courts have the discretion to find a person guilty with a conviction or with no conviction recorded. In exercising this discretion the court must consider:
- The nature of the offence;
- The character and history of the offender;
- The impact the conviction is likely to have on the offender’s economic and social wellbeing and on their employment prospects.
When a court finds a person guilty of an offence with no conviction recorded, it may still make any other orders it has the power to make under the Sentencing Act. This includes sentencing orders such as fines, good behaviour bonds and community corrections orders. However, if a court sentences a person to a term of imprisonment or to a drug treatment order, it has to record a conviction.
Being found guilty with no conviction recorded
Being found guilty with no conviction recorded is a better outcome for a defendant than having a conviction recorded. If a person is found guilty of an offence and wants to ask the court not to record a conviction, they will need to make suitable submissions to the court as to why this is appropriate. Character references from people who know the defendant and know about the offending can be tendered in support of these submissions. Letters from current or previous employers or colleagues are appropriate for this; letters from friends and family will be given less weight.
The release of criminal records
A criminal record check may be carried out on a person in various circumstances, such as when they apply for a job or a visa. If the person agrees, their criminal records including any findings of guilt, convictions and any time spent in prison, will be disclosed to the person making the application.
If a person has findings of guilt with no conviction recorded, they will appear on the person’s criminal record as findings of guilt only. In Victoria, a criminal record is available for ten years after sentencing if the person was over 18 at the time of the offence, and for a period of five years if they were under 18. The criminal record will also list any outstanding matters that have not yet been finalised by a court.
Exceptions to the ten-year rule for criminal records
In some circumstances, a criminal record will contain offences from longer ago than 10 years. This occurs where a person had a term of imprisonment longer than 20 months if they committed a serious violence offence, or a sexual offence and the criminal record check is being requested in relation to a job involving working with children. It will also occur where a person committed a serious offence but was acquitted due to insanity, or mental impairment.
There are certain situations where a criminal record search is required that includes any, and all, offences a person has committed no matter how long ago they occurred. These include registration with a child screening unit, employment with the Victorian Institute of Teaching, registration of a health professional, assisted reproductive treatment, employment in prisons, employment in a casino, and when a person is applying for a bus driver licence, a security licence, a taxi licence, or a firearms licence. Who is asking for the criminal record search will determine what information is shown, as there are different release policies that the police must abide by for searches for different purposes.
If you require legal advice or representation in any legal matter please contact Armstrong Legal.