No Conviction in Tasmania
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.