This article was written by Courtney Ashton - Solicitor - Perth
Courtney holds a Bachelor of Laws and a Bachelor of Criminology and Justice from Edith Cowan University and a Graduate Diploma of Legal Practice from the College of Law. Courtney is a dedicated practitioner who enjoys a challenge and has competently completed many traffic and summary jurisdiction matters. Courtney enjoys advocacy and has appeared in a number of drink driving,...
Spent Conviction Orders (WA)
When a person is found guilty of a criminal offence and the conviction imposed is declared spent, the requirement for the person to disclose that conviction is limited. Spent convictions are not listed on a National Police Clearance. At the time a person is sentenced for an offence, they may ask the Magistrate or Judge to make a Spent Conviction Order (SCO) pursuant to section 45 of the Spent Convictions Act 1988. This article deals with Spent Conviction Orders in WA.
When will the court make a Spent Conviction Order?
At the time of sentencing, the court may make a SCO if the court is satisfied that the defendant:
- Is unlikely to commit such an offence again; and
- Should be relieved of the negative effects of that conviction because:
- the offence was trivial; or
- they are a person of prior good character.
The court cannot make an SCO if it has imposed any of the following penalties:
- intensive supervision order;
- suspended term of imprisonment;
- conditional suspended term of imprisonment; and
- term of imprisonment.
If a person is not granted an SCO order at the time of sentencing, depending upon the type of penalty imposed, they may be able to make an application seeking that the conviction be spent at a later point in time.
Types of Spent Conviction Orders
There are two types of convictions as set out under the Act:
- Lesser Conviction; and
- Serious Conviction.
Lesser Conviction
A lesser conviction is a conviction in respect of which the sentence imposed is:
- Imprisonment for less than one year;
- A fine of $15,000 or less.
A lesser conviction becomes spent when, on an application being made in the prescribed form to the Commissioner of Police, the Commissioner issues to the applicant a certificate that the conviction is spent. An application to spend a lesser conviction may not made until the prescribed waiting period of 10 years has expired.
When a person applies for a National Police Clearance to the West Australian Police Force, the application contains an application to spend eligible convictions.
Serious Conviction
A serious conviction is a conviction in respect of which the sentence imposed is:
- Imprisonment for more than one year or for an indefinite period of time;
- A fine of $15,000 or more.
Much like a lesser conviction, an application may not be made until the prescribed waiting period of 10 years has expired. If the person received a term of imprisonment, the prescribed waiting period is 10 years, plus the period of any term of imprisonment relevant to that conviction.
A serious conviction may only be declared spent by applying to the District Court after the relevant waiting period has expired.
Exceptions
Generally, once a conviction is spent, the requirement to disclose that conviction is limited, however, in some cases, you are still required to disclose the conviction. These exceptions are set out in Schedule 3 in the Act. Should you be unsure whether you are required to disclose your spent conviction, you should seek legal advice and contact Armstrong Legal.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.