Your criminal record shows prior criminal convictions from any jurisdiction. However, many criminal convictions do not stay on your criminal record forever. Instead, depending on the type of crime, a crime could be “spent” or removed from a criminal record virtually immediately. Convictions do not expire, but they can become spent under certain circumstances.
In 2022, the Spent Convictions Act 2021 went into effect. It sets out that certain types of convictions will be automatically spent. In general, timelines for a conviction to become spent range from immediately to up to 10 years. The more serious the offence, the longer it will remain on your criminal record. Some convictions cannot be spent or can only be spent if you apply to the court because of the serious nature of the crime.
What is a Criminal Record?
A criminal record is a formal, legal document (kept electronically) that sets out all convictions that you have experienced. It is stored in the Australian National Criminal Database. It can be accessed for specific reasons, such as by the court in later cases or with permission when you apply for a job or have occupation-related licensing and registration requirements.
Criminal History Held by the Victoria Police
The criminal record that the police see is slightly different than the one that an employer would see. An employer will generally only see convictions that have not been spent. However, the police have a more extensive database of all of your involvement with the criminal justice system in Victoria. For instance, they can see prior charges, even if there was no formal conviction because the charges were later dropped.
What Criminal History Will the Victoria Police Release?
The police will not release any historical information if a charge was dropped, a magistrate found you not guilty, or you completed a diversion program. In addition, the police can only release information after you provide consent for the information to be released.
In the employment context, for example, the employer may have you review and sign a consent form so they can request a background check. That form will be provided to the Victoria police with any criminal record request.
What is A Spent Conviction?
A spent conviction is any conviction that is no longer part of a criminal record. In most situations, once a conviction becomes spent, an individual does not have to tell anyone about it, including virtually anyone who may do a criminal background check, such as potential employers.
Depending on your circumstances and the severity of the crimes on your record, achieving a spent conviction can be challenging. Experienced criminal lawyers in Melbourne can help you better understand and leverage the provisions of the Spent Convictions Act to get your record wiped clean.
Types of Spent Convictions
Immediately Spent Convictions
There are a few convictions that will be “immediately spent.” This means that with the passing of the Spent Convictions Act 2021, this type of conviction has already been removed from your criminal record. Convictions that fall under this category include:
- Any conviction for an offence that was committed when the person was under the age of 15
- A conviction where the only penalty imposed was a fine by the Children’s Court (or a similar court outside of Australia)
- Infringement convictions
- Any conviction that was not recorded by a court
- Any conviction with a qualified finding of guilt because of mental impairment or unfitness to be tried
Perhaps the most common automatically spent convictions are infringements. These convictions are usually driving fines that result from charges such as drunk driving, drug driving, or driving at excessive speed.
A conviction will only be spent if all of the conditions attached to the conviction are complete. For instance, if the conviction imposed a fine and that fine has not yet been paid, then the conviction will not be spent until the fine is paid in full.
Spent Convictions After a Period of Time
Some convictions will be spent after a specific waiting period. You do not need to request the court to have these convictions spent. However, spent convictions based on the passage of time can never be “serious” convictions. A serious conviction includes:
- Any conviction where the sentence imposed was more than 30 months of imprisonment
- Sexual offences
- Serious violent offences
Non-serious convictions are spent after five years if the person convicted was a child or young offender at the time of the conviction. All other convictions are automatically spent after ten years. Keep in mind that the waiting period starts as of the date of the conviction.
Convictions Spent By Request
Other convictions that are not automatically spent must be requested. An individual can file an application with the Magistrates’ Court of Victoria to remove a serious conviction. These requests cannot be made until after the five or ten-year required waiting period, depending on whether the offender was a child at the time of the conviction. When requesting a conviction to be spent, presenting a strong case is crucial. Providing a strong character reference for court can be beneficial in such scenarios. Learn how to write a character reference for the court to improve your chances of a favourable outcome.
Your criminal record provides a history of interactions with the criminal justice system in Victoria. Convictions can become spent automatically or after the passage of ten years in most situations. Some serious convictions cannot be spent and will remain on your criminal record indefinitely, that’s why it’s best to do everything you can to avoid a criminal record in the first place. You can get more information about your criminal record and the process for a conviction to become spent by contacting a knowledgeable Victoria lawyer.