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This article was prepared by Go To Court Lawyers, Australia's largest legal service. For legal advice specific to your situation, call 1300 636 846.
When a person commits a criminal offence in Tasmania and a conviction is recorded, that conviction may eventually become ‘spent’ or ‘annulled’. This means that the conviction no longer has to be disclosed as part of the person's criminal record (subject to some exceptions). Tasmania's annulled convictions scheme is contained in the Annulled Convictions Act 2003. This article deals with the recording of convictions in Tasmania.
Sentencing without conviction
The Sentencing Act 1997 sets out the circumstances when a sentencing judge may record a conviction for a criminal offence. Whether a conviction is recorded will usually depend on what penalties are imposed and the circumstances in which the offence was committed, including the nature of the offence, the character of the offender, and how a conviction would affect their employment prospects and general social and economic wellbeing.
Section 10 of the Act stipulates that the court is not prevented from making any other order which it may be able to make under the Act, even if it does not record a conviction. Therefore an offender may be ordered to participate in a drug treatment program even if no conviction is recorded. A person who is pleading guilty, or who has been found guilty of offences may make submissions to the court against the recording of a conviction.
Your criminal record
When a person is found guilty of an offence and no conviction is recorded, the finding of guilt will still form part of their criminal record. Generally speaking, a person's criminal history can only be disclosed with their consent. An employer may ask for permission to do a criminal records check before employing a person.
Under the Anti-Discrimination Act 1998, it is illegal to discriminate against someone based on an irrelevant criminal record, but a guilty verdict with no conviction (that is not annulled under the Annulled Convictions Act) does not fall under this definition. This means that a finding of guilt without conviction could still affect a person's employment prospects.
Tasmania’s annulled convictions scheme
Under the Annulled Convictions Act 2003, in certain circumstances it is a criminal offence for a person, including a police officer, to disclose convictions of offences that a person has committed after they have become annulled, unless the person have given consent.
Annulled convictions are not part of an offender’s official criminal record, and cannot be required to be disclosed to any person subject to certain exceptions (e.g. if you have applied for a school teaching role).
Which conviction can be annulled?
Only convictions for minor offences can become annulled. An offence is a minor offence if it is not a sexual offence, not a prescribed offence, and no more than six months imprisonment was imposed for the offence.
A minor conviction will become annulled if an offender is of good behaviour for a period of 10 years after the conviction was recorded (in the case of an offence committed when the offender was an adult), or for five years after the conviction was recorded (if the offence was committed when the offender was a child). However, if an offender commits another offence punishable by imprisonment within those time periods, the period restarts at the date of the later offence.
Commonwealth spent convictions scheme
Under the Crimes Act 1914 (Cth), commonwealth criminal offences become spent automatically after 10 years (for an adult) and five years (for a minor) as part of the Commonwealth spent convictions scheme. However, this rule does not apply to convictions where a person was sentenced to imprisonment for more than 30 months. If a person is convicted of a further offence during the waiting period, it will restart from the date you were convicted of the further offence.
A person has a right not to disclose spent convictions to any person, including an Australian Commonwealth authority or a state authority, including such an authority in a foreign country. However, there are some exceptions to this general right of non-disclosure - 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.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
faqs: - question: 'What happens to my criminal record if I''m found guilty but no conviction is recorded?' answer: 'The finding of guilt will still form part of your criminal record even when no conviction is recorded. Your criminal history can generally only be disclosed with your consent, such as when an employer requests permission to conduct a criminal records check. However, this guilty verdict without conviction does not qualify for anti-discrimination protection under Tasmania''s Anti-Discrimination Act 1998 unless it becomes annulled.' - question: 'Under what circumstances will a Tasmanian court decide not to record a conviction?' answer: 'Tasmanian courts consider several factors under the Sentencing Act 1997 when deciding whether to record a conviction. The court examines the nature of the offence, the character of the offender, the penalties being imposed, and how recording a conviction would affect the person''s employment prospects and general social and economic wellbeing. Offenders can make submissions against recording a conviction.' - question: 'How much will it cost to get legal advice about avoiding a conviction in Tasmania?' answer: 'Go To Court Lawyers offers a fixed consultation fee of $295 to discuss your criminal matter and options for avoiding a conviction in Tasmania. During this consultation, a criminal lawyer can assess your case, explain the factors courts consider when deciding whether to record a conviction, and advise on the best approach for your specific circumstances and potential sentencing outcomes.' - question: 'How can a criminal lawyer help me avoid having a conviction recorded in Tasmania?' answer: 'A criminal lawyer can prepare and present compelling submissions to the court arguing against recording a conviction. They will gather evidence about your character, explain mitigating circumstances, demonstrate how a conviction would impact your employment and wellbeing, and ensure all relevant factors under the Sentencing Act 1997 are properly presented to give you the best chance of sentencing without conviction.' - question: 'Is there a time limit for applying to have my conviction annulled in Tasmania?' answer: 'Yes, there are specific time limits under Tasmania''s Annulled Convictions Act 2003 for when convictions can become annulled or spent. The waiting period varies depending on the type of offence and sentence imposed. It''s crucial to understand these timeframes and ensure you don''t miss important deadlines, as failing to apply within the prescribed periods could permanently affect your criminal record.' ---