Anyone convicted of an offence (including traffic offences) will have a criminal record. But it is possible to apply for a spent conviction order either:
- at the time of sentencing; or
- ten years after being convicted.
Unlike some countries, convictions in Western Australia do not become spent automatically after passage of time.
A criminal record can affect employment prospects and international travel, particularly to the United States. It can also prejudice eligibility to hold licences and registrations.
Prospective employers may request applicants for a National Police Certificate (NPS) that lists all offences and pending charges. Whilst it is not obligatory to supply a certificate, failure to do so may be telling.
Benefits of a spent conviction order
Spent convictions typically do not appear on National Police Certificate and do not have to be disclosed in most situations (a list of exceptions is contained in the Spent Convictions Act 1988 (WA)).
In most cases it is unlawful for an employer to discriminate on the basis of a spent conviction. Both the Equal Opportunity Act 1984 (WA) and the Australian Human Rights Commission Act 1986 (Cth)protect employees from such conduct.
Applying at the time of sentencing
To obtain a spent conviction order at the time of sentencing, an applicant must show that he/she:
- is unlikely to commit such an offence again; and
- should be relieved immediately of the adverse effect of the conviction because:
- the offence was trivial; or
- previous good character has been demonstrated.
The sentencing magistrate or judge may refuse to make a spent conviction order even if these criteria are satisfied.
Many people who represent themselves on minor charges don’t obtain an immediate spent conviction either because they are unaware of the procedures or are insufficiently prepared.
It is generally not enough to claim that the conviction might affect future travel plans or employment prospects. The Court will usually ask for references and other supporting documents depending on personal circumstances and the nature of the offence.
Appealing the sentence
If you have been convicted and you did not apply for a spent conviction order, or your application was declined, we may be able to assist you with appealing the sentence.
Applying after ten years
Spent conviction orders for most offences are available after a 10 years plus any relevant time of imprisonment, provided there are no intervening convictions attracting a fine of at least $500. Otherwise, the waiting period runs from the date of the most recent conviction.
The application process varies according to the seriousness of the conviction.
How we can help
Birman & Ride can advise and represent you in relation to:
- criminal appeals;
- applications for spent conviction orders; and
- discrimination issues arising from a criminal record.
Contact us to get started.