If you have criminal convictions that are more than 10 years old, you can apply for an order to have them declared spent pursuant to Section 6(1) of the Spent Convictions Act 1988 (WA). Old convictions are classed as either “serious convictions” or “lesser convictions”. How you apply for an old conviction to be spent depends on whether it was a “serious” or a “lesser” conviction.
A serious conviction is where you received a sentence of imprisonment for more than one year or a fine of $15,000 or more. These applications are made to the court.
A lesser conviction is where you received a sentence of imprisonment for one year or less or a fine of less than $15,000. These applications are made to the Commissioner of Police.
If you received a sentence of life imprisonment, you cannot apply for a spent conviction.
What happens when a conviction is spent?
If a conviction is spent, you generally are not obliged to disclose that you were convicted of that offence. However, the conviction doesn’t disappear completely. It remains part of your criminal record kept by the police and the court, but it will not be included as a ‘disclosable conviction’ when you apply for a National Police Clearance.
Spent convictions remain part of your criminal history and can be considered when dealing with a bail application or sentencing you for a new offence. Spent convictions are considered when you apply for a Working with Children Check and will need to be declared.
When do spent convictions need to be declared?
You will need to declare a spent conviction if you are applying for jobs in the police, armed forces, schools or when making an application to hold a firearm. However, this list is not exhaustive, and you will need to speak to a lawyer to obtain the full list.
How to make an application to spend a serious conviction
A serious conviction is where the penalty given was imprisonment for more than one year or a fine of $15,000 or more. These applications are made to the District Court of Western Australia.
To be eligible to obtain a spent conviction, 10 years must have passed since you were sentenced, plus the period of the sentence. For example, if you were sentenced to four years imprisonment, you will have to wait 14 years from the date of sentencing to make an application to the District Court. If you were released from prison after serving two years of a four-year term, you will still be required to wait the four years plus the ten-year waiting period.
In addition, accumulating minor offences upon release from prison can affect the length of time that you will have to wait to obtain a spent conviction. For example, if you were released from a four-year prison term eight years ago and you were then convicted of Driving Without Authority and fined $1,000.00, you would have to wait another 10 years from the date of that conviction before you could make an Application to the District Court of Western Australia for a spent conviction.
The only way that the ‘clock’ does not start over, is if the lesser conviction resulted in either no punishment, or a fine of $500 or less was imposed.
What happens if the court refuses to grant me a spent conviction?
If the court refuses to grant you a spent conviction, you will need to wait two years before you can re-apply.
What does the Judge take into account when deciding to grant a spent conviction?
The Judge takes into account all of the following factors when using his or her discretion to grant a spent conviction
1. The length of the sentence imposed;
2. The length of time that has passed since the conviction was incurred;
3. Whether the conviction prevents the applicant engaging in a particular job;
4. The Applicants personal circumstances at the time of the offence and at the time of the application;
5. The seriousness and nature of the offence;
6. The circumstances of the offence; and
7. Whether there are public interest considerations.
Ok, I meet the criteria, so how do I make an Application?
Legal Aid has a spent conviction kit to assist persons wishing to have old serious convictions spent.
First you will need to get a current National Police Clearance. You will need to complete a Notice of Motion and affidavit outlining the reasons that you would like your conviction spent.
You can provide the court with character references to support your application. Please note that character references may need to attend the court in person to be questioned by the representative of the Commissioner of Police.
You will need to attach your Notice of Motion, Affidavit, Police Clearance and Character References to your Application and submit them to the District Court. You will then be given a date on which your application will be held.
You will need to pay a filing fee and serve a copy of the documents on the Commissioner of Police.
When and where will my application be heard?
Applications for spending a serious conviction will be held on the last Thursday of each month at the District Court of Western Australia. Only 10 hearings are held per session, so it is imperative that you submit your Application early to avoid delay.
If you require legal advice or assistance in a criminal matter, please contact Go To Court lawyers.
By Shirley Casey, Associate