A spent conviction basically limits the disclosure of previous criminal convictions, meaning that if you have committed a crime in the past, it will no longer show up on your criminal record and you don’t have to disclose it to anyone, either within Australia, or overseas.
It will even allow you to claim on oath that you are not charged with or convicted of an offence.
This is good news for you, as it may no longer prejudice your chance to get a job, or travel abroad, amongst other things. Even government authorities will not longer be able to access or disclose your prior conviction for such spent offences.
Of course there are exceptions to spent convictions, as some crimes will remain on your record forever.
Federal spent convictions are covered in the Crimes Act 1914, a Commonwealth Act, and section 85ZM outlines when a conviction becomes ‘spent’ if:
- a person was not sentenced to imprisonment,
- was sentenced to imprisonment for less than 30 months and the waiting period for the offence has expired.
The waiting period is 10 years since the date of conviction, or five years for juvenile offenders.
In addition, someone hoping to receive a pardon must not re-offend during this 10-year waiting period (or five years for the juvenile offender).
It also covers a person who has been acquitted after a wrongful conviction, as well as if an offence was quashed or pardoned for any other reason.
In NSW a relatively minor offence can be spent if the offender does not re-offend within the required time frame (10 years). Exceptions are laid out in the Criminal Records Act 1991 section 7:
- If the offender was sentenced to more than six months imprisonment (periodic or home detention do not count)
- Convictions against companies and other corporate bodies
- Sexual offences under the Criminal Records Act 1991; and
- Other statutory exceptions laid out by the Regulations
But the removal of a need to disclose does not go away entirely: a spent conviction does not apply to some jobs including: a judge, magistrate, justice of the peace, police officer, member of staff of Corrective Services NSW, teacher or a teachers aid.
The Attorney-General has also granted other exclusions that apply to other categories of employment.
If you re-offend during the 10-year time frame, the period from which a spent conviction will be calculated starts running from the date of this subsequent conviction.
Traffic offences are not included as an offence which will restart the recalculation of the waiting period (even if they result in imprisonment) for a non-traffic offence (although they are of course relevant for calculating a crime-free period for a traffic offence).
This is the general rule unless the traffic offence involved dangerous driving that occasioned death or grievous bodily harm or injury by furious driving.
The reverse also applies – a non-traffic offence is not relevant for calculating a crime-free period for a traffic offence.
Of course, better than waiting for your criminal record to be ‘spent’, is not getting one in the first place.
If you have criminal charges pending, which carry a potential criminal conviction, it is advisable to speak to a lawyer about your options because of all the implications that a criminal record can bring.
One way to avoid a criminal conviction is set out in the Crimes (Sentencing Procedure) Act (NSW) which allows a court to deal with your offence without recording a conviction.
It is known as a section 10(1)(a) dismissal or conditional release order and is available at a magistrate’s or judge’s discretion for under certain circumstances.
