No Conviction in Victoria
When a person is found guilty of an offence in Victoria, the court may record a conviction against them or may find them guilty without conviction. When a conviction is recorded it forms part of the person’s criminal record and must be disclosed in a number of situation, including when the person applies for a police check or a working with children check. When a person is found guilty of an offence without conviction, the finding of guilt still forms part of their criminal record but it is not required to be disclosed in as many situations and therefore does not affect the person as much. This article deals with findings of guilt without conviction in Victoria.
Sentencing without conviction
Under section 8 of the Sentencing Act 1991, a sentencing judge may, depending on the nature of the offence and the penalties imposed, choose to record a conviction or to find the person guilty without recording a conviction.
In deciding whether to record a conviction, the court will consider the defendant’s circumstances, including the nature of the offence committed, their history and character, and what impact a conviction would have on their employment prospects and personal well-being.
If the person is represented by a lawyer when they are sentenced, the lawyer may make submissions to try and persuade the court not to record a conviction. This is more likely to occur in cases where the offending is minor and where a conviction will have a significant impact on the person – for example, precluding them from practicing their profession.
Under the Criminal Procedure Act 2009, a criminal record includes details of findings of guilt and convictions. Even if a conviction is not recorded for an offence, the finding of guilt will still be on the person’s criminal record.
A person can look up their criminal record by lodging a form with the Victoria Police and paying a fee. The form can be found on the Victoria Police website. A person’s criminal history can usually only be disclosed with their consent.
Information release policy
Because Victoria does not have its own spent convictions scheme, the Victoria Police have adopted an informal practice of only disclosing certain information about a person’s criminal history. For example, if a person is an adult and was last found guilty of an offence more than 10 years ago, the Victoria Police will not release the details of the old offences. If a person was last convicted of an offence as a child, the details will not be released after more than five years.
There are certain exceptions to these rules, and these rules do not give a person a statutory right of non-disclosure in the same way a spent convictions scheme does. The exceptions include if a record is sought by the Victorian Institute of Teaching, in relation to acquiring a firearm licence, or if you committed a sexual or other serious offence and you are seeking to be employed working with children or to do volunteer work. You can find more information on this practice in the Information Release Policy located here.
Unlike many other states, Victoria does not have its own spent convictions scheme. Instead, the Commonwealth spent convictions scheme contained in the Crimes Act 1914 applies to some Victorian criminal offences, but only those which have a “federal aspect” (meaning that is potentially falls under Commonwealth legislative power). Examples of offences with a federal aspect are offences involving trade or commerce between states and offences involving the postal service. These convictions become spent automatically after 10 years for an adult and five years for a minor. However, this rule only applies to convictions where the person was not sentenced to imprisonment for more than 30 months.
The effect of a conviction being spent is that the person has a right not to disclose it to an Australian Commonwealth authority or to a state authority, including such an authority in a foreign country. Exceptions to this general rule include if a person works with or is seeking to work with children, and a body is required or permitted to collect that information under a law. Furthermore, if a person is convicted of a further offence during the “waiting period” mentioned above, the “waiting period” may restart from the time they were convicted of the further offence.
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