If you are found guilty of a criminal offence in the Northern Territory, the sentencing judge may, depending on the nature of the offence and the other penalties imposed, choose to record a conviction for the offence, or to sentence you without recording a conviction. The rules for doing so are contained in the Sentencing Act. If a conviction has been recorded, you will have a criminal record that must be disclosed in certain circumstances. However, after a certain period of time, some convictions become ‘spent’, meaning you have a right not to disclose them, subject to some exceptions. All of the States and Territories (other than Victoria) have a spent convictions scheme. The Northern Territory’s is contained in the Criminal Records (Spent Convictions) Act. The Commonwealth also operates a spent convictions scheme that applies to Northern Territory criminal offences with a federal aspect, which is contained in the Crimes Act 1914.
Sentencing without conviction
Under the Sentencing Act, a sentencing judge can choose not to record a conviction for offences which are punished by imposing a fine, community work order or community based order. If you are sentenced to imprisonment for committing an offence, a conviction must be recorded. The Northern Territory has mandatory imprisonment laws for a number of violent offences, meaning in a lot of cases, a conviction must be recorded. When the Judge decides whether to record a conviction or not, they must take into account a number of factors such as whether the offence was of a trivial nature, the age, mental or health condition of the offender, and whether the offence was committed in extenuating circumstances. Unfortunately, if you are found guilty of an offence but no conviction is recorded, then your criminal record will not be an “irrelevant criminal record” for the purposes of Northern Territory anti-discrimination laws. This means a person (e.g. employer) can be discriminatory against you on the basis of your criminal history despite not having a recorded conviction; for example, by refusing to employ you.
Northern Territory spent convictions scheme
Under the Criminal Records (Spent Convictions) Act, certain convictions become ‘spent’ after a period of time. These rules only apply to convictions for which the penalty was 6 months imprisonment or less. They also do not apply to convictions for specific kinds of offences, including sexual offences. If you were an adult when you were convicted of the offence and you were not convicted in a Youth Justice Court, the conviction will become spent automatically after 10 years from the date of the conviction (or, if you were sentenced to imprisonment, ten years after the period of imprisonment ends). If you were convicted in the Youth Justice Court as a child, the conviction becomes spent automatically after a period of 5 years from the date of the conviction (or, if you were sentenced to imprisonment, five years after the period of imprisonment ends). If you were convicted as a child in a court other than the Youth Justice Court, the same 5 year period applies but you have to apply to the Police Commissioner to have your conviction spent. These periods only apply if you are not convicted of another certain offence punishable by imprisonment during that time. If your conviction becomes spent, a person cannot take it into account for certain purposes (e.g. deciding to employ you) or disclose it without your permission.
Commonwealth spent convictions scheme
The Commonwealth has had a spent convictions scheme since 1990. Under the Crimes Act 1914, criminal offences under that Act become spent automatically after 10 years for an adult and 5 years for a minor. However, this rule only applies to convictions where you were not sentenced to imprisonment for more than 30 months. The effect of the conviction being spent is you have a right not to disclose the offence to an Australian Commonwealth authority or a State authority, including such an authority in a foreign country. Exceptions apply to this general rule; for example, if you work with or are seeking to work with children, and a body is required or permitted to collect that information under a law. Furthermore, if you are convicted of a further offence during the “waiting period” mentioned above, the “waiting period” may restart from the time you were convicted of the further offence.