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Spent Convictions WA
At Andrews Legal, we can assist your application for a spent conviction by advising about how best to frame your case for a spent conviction, including providing an outline of the reference material required and by checking the references you do obtain. We will maximise your chances of obtaining a spent conviction. As experts in spent conviction applications in WA, we will make submissions to the court on your behalf as to why the court should grant you a spent conviction.
What is a spent conviction order?
A spent conviction order has the effect that a conviction for a criminal or traffic offence is “expunged” from the record, in other words the conviction does not appear on the record in your National Police Clearance. A spent conviction order is considered an exceptional order by the courts because usually convictions are to remain on the record. A spent conviction will still appear on the version of your record kept by Police and the courts.
Generally it is illegal for employers, unions, licensing boards and professional regulators to discriminate on the basis of a conviction which is spent. When asked if you have any convictions, generally you do not need to disclose a conviction that is spent.
Is there any situation where a spent conviction must be disclosed?
When applying for certain jobs, such Police Officer, Prison Guard our Transport Officer, you must disclose spent convictions. Spent convictions must be disclosed when applying for a working with children permit, security licence, child care provider licence, firearms licence and casino employee licence. If you are applying for an Australian visa or citizenship, you will need to disclose any spent convictions.
When is a spent conviction order made?
A spent conviction order can be made by a court at the time of sentencing. However, a court can only grant a spent conviction if satisfied that the matter can be dealt with by imposing no penalty, a conditional release order, fine or community based order.
If the court imposes imprisonment, regardless of whether the term of imprisonment is suspended or immediate, or an intensive supervision order, the court does not have the power to grant a spent conviction.
What criteria do I need to meet to be granted a spent conviction at the time of sentence?
The court must be satisfied of the following criteria:
(a) you are unlikely to commit a similar offence in future, and
(b) you are of prior good character and/or the conviction is trivial in nature, and
(c) the adverse affect that a conviction would have upon you and whether you should be immediately relieved of that adverse effect having regard to:
- Whether you are in a career where the consequences of a conviction will be more significant than for the average person,
- The courts recognise that it is often difficult for people, especially young people, to identify with certainty how a conviction will impact their future career. However where there is clear evidence that your employment or career prospects will be adversely affected, this will bolster your case for a spent conviction.
- Other adverse affects that a conviction will have, for example by hindering your need to travel overseas regularly,
- The public interest in criminal convictions remaining on the record,
- The nature and circumstances of the offence, the objective seriousness of the offence and the need for general deterrence,
- Whether there is an overriding public interest in the matter remaining on the public record. For example, the courts have found that there is generally a public interest in offences involving dishonesty or traffic offending remaining on the record, and
- Whether the grant of a spent conviction is likely to assist in your rehabilitation.
- Whether a court has granted you the benefit of a spent conviction order previously.
Written references to support your application
You will need to provide the court with written character references. If you decide to book a consultation with our firm we provide our clients with a useful template for your references.
It is not necessary for your referees to actually attend court.
You should provide 3 or 4 character reference letters in total. References should be obtained from a range of people who know you well: friends, family, colleagues etc. Quality is more important than quantity. The referees should be addressed “To the Presiding Magistrate/Your Honour,) in the Magistrates Court and “To the Honourable Presiding Judge/Your Honour,” in the District and Supreme Courts. Referees must confirm that they are aware of the charges you are pleading guilty to, they should state the actual charge names.
Other supporting materials required to assist your spent conviction application
If you have been convicted of an offence involving alcohol consumption or drugs, it is highly advisable that youy do the court supervised counselling program known as the Pre-Sentence Opportunity Program (known at court as the “POP” program. Alternatively you can do private psychological counselling. The out of pocket cost is greater should you choose to use a private psychologist, however the report provided is also likely to be much more detailed.
The advantage of doing some form of counselling is that it demonstrates to the court that you have accepted wrongdoing and sought treatment. It gives the court some assurance you are unlikely to commit a similar offence in future.
Other supporting materials you may wish to provide to assist your spent conviction application.
- Liver function test or drug screening if the offending involved traffic or drug offences, or occurred while under the influence of alcohol or drugs,
- Proof of qualifications, employment or study enrolment,
- If convicted of a traffic offence, certificate of completion of the Australian Traffic Offenders Program online learning module.
Can I be granted a spent conviction order if I’ve had a spent conviction before?
Generally you can only a spent conviction order once. A spent conviction order is by its nature “exceptional”. It is possible, though difficult, to obtain a second spent conviction. The court will generally only consider granting a second spent conviction where a number of years have passed since the original conviction was imposed and the original conviction was a different type of offence.
Can the refusal of a spent conviction be appealed?
A Magistrate’s decision to refuse a spent conviction order at sentencing is able to be appealed to the Supreme Court of Western Australia. The decision of a District Court Judge must be appealed to the Court of Appeal.
Can I apply for old convictions to be spent?
Yes. You can apply to for old convictions to become spent, provided you have not incurred any other convictions for a period of 10 years from the date of the conviction.
If the conviction is a lesser conviction the application for the conviction to he spent is made to WA Police. A lesser conviction is one which resulted in a sentence other than imprisonment, including a fine of less than $15k or a term of imprisonment of 1 year or less. There is no fee for lodging the application with WA Police and the application form is available on their website.
A serious conviction can only be spent by the making of an application to the District Court. A serious conviction is one which resulted in a term of imprisonment exceeding 1 year or a fine exceeding $15k. The District Court must take into account a number of factors when deciding whether to spend a serious conviction including the nature of the offending, demonstrated rehabilitation, the public interest, your personal circumstances and the adverse affect that the conviction is having upon you.
If you’d like to find out more about applying for a spent conviction in WA, our team at Andrews Legal are here to help. Get in touch today to arrange an obligation free initial consultation by calling our friendly team on (08) 9221 2991