There are thousands-upon-thousands of types of criminal offences in NSW, and it is unlikely that there are many of us that haven’t committed a crime at some point in our lives.
Many of us may have received a parking or speeding ticket, but not all offences are classified as ‘criminal’ and will lead to a criminal record.
Some are obvious like murder and sexual assault, which will be on a person’s criminal record for life.
But minor offences, such as uttering offensive language in public, or entering a public fountain, are summary offences that can give you a criminal record.
What if I never go to court?
If you do not get a Court Attendance Notice for your offence, it will not go on your criminal record.
Some criminal offences can be dealt with either in court, or by way of a ‘ticket’. This is usually a matter of discretion for the police.
Of course, not all offences are equally prosecuted and many are dealt with outside of the courts by payment of a simple fine. This is known as a civil penalty, as opposed to a criminal charge.
Some offences are ordinarily not dealt with in court, unless you want to challenge them.
This is the case for many major traffic offences such as negligent driving not occasioning death or GBH, where police may give you an infringement notice rather than take you to court.
Tickets can also be issued for offensive language – it is entirely a matter for police.
If a court finds you guilty of one of these offences instead and it imposes a fine or another penalty, it will go on your criminal record.
What about traffic offences?
In NSW, criminal and traffic records are separate but this is not the case in Victoria.
VicRoads can give you a criminal driving offence if you break a road rule.
However in NSW, some of the more serious traffic offences, called ‘major traffic offences’, can carry criminal penalties.
Some of these offences are: drink driving (PCA or DUI), negligent driving (when decided in court), driving while suspended or disqualified, police pursuit, and reckless driving.
As stated, police have discretion with some charges. For example, speeding more than 45km/hour may be dealt with in court, but it can also be done through a notice in the mail.
What does it mean for an offence to be decriminalised?
Offences are sometimes decriminalised.
This is the case in South Australia for the possession of a small amount of marijuana.
In NSW, it is still an offence but instead of ending up in court, police have the discretion to issue a ‘cannabis caution’ for possessing less than 15 grams of cannabis.
This means that it is highly unlikely for someone caught with marijuana for the first time to get a criminal record, even though it is still a criminal offence.
This is not the only offence where police have discretion whether or not to have the matter dealt with in court. Often an offence may come with an on the spot fine, or alternatively, can be dealt with in court.
As well as potentially leading to a criminal record, the penalties may be higher if an offence is dealt with in court.
Can I avoid a criminal record if my case ends up in court?
If you are found not guilty, you will obviously not have a criminal conviction on your record.
But even if you plead guilty, you may still be able to avoid a conviction.
A person of generally good character can maintain a clean criminal record by being awarded a ‘section 10(1)(a) dismissal’ or a ‘conditional release order without conviction’.
Getting such an outcome will mean that there is no criminal conviction, no fine and, in driving cases, no loss of licence.
Is a criminal record for life?
Offences will generally be on your record for the next ten years after the date of conviction.
After that time, most offences will become spent convictions and you will no longer have them on your criminal record.
Some exemptions to this apply, such as murder and other serious offences, which will never be spent, or where you have received a sentence of imprisonment of more than 6 months.
Apart from the exceptions, you will be considered to have a ‘clean record’ after 10 years of not offending.
If you are a NSW resident, it is possible to request a check from the NSW police Criminal Records Section. Anyone aged 14 and over can apply.
