If you’ve previously been convicted of an offence or have had other interactions with the criminal justice system, you might be wondering whether you have a “criminal record”.
Having a criminal record can severely limit many aspects of life including potential career options as well as the ability to travel to certain countries.
Here’s what you need to know.
What is a Conviction?
Generally, when we speak of a “criminal record” we’re talking about the kind of history discoverable through a National Police Check or a Working With Children Check.
These checks are generally restricted to “disclosable court outcomes”. A disclosable court outcome can include:
- Convictions for criminal offences, which are not “spent” (see below).
- Findings of guilt when still subject to a good behaviour bond or a conditional release order without conviction.
- Outstanding criminal charges, and
- Ongoing criminal court proceedings.
It should be noted that certain security checks, such as a National Security Check, could reveal further information than a standard national criminal record checks. Moreover, if your matter was reported in the media, a potential employer could still discover your history by searching your name online.
Offences That Don’t Show on a Criminal Record Check
Not all interactions with the criminal justice system will show up on a National Police Check or a Working With Children Check.
Generally, the following outcomes will not show up on a national criminal records check:
- Convictions in other countries.
- Spent convictions.
- Regulatory fines such as parking fines.
- Situations where a person has avoided a court outcome as a result of participation in a diversion program.
- Police cautions or warnings.
- Findings of guilt resulting in a good behaviour bond or a conditional release order without conviction if the term of the bond or order as ceased.
- Apprehended Violence Orders or Apprehended Personal Violence Orders unless a person has been found to have breached one of these orders.
- Non-criminal legal outcomes such as divorce proceedings or civil litigation.
- Charges which have been dismissed or were dropped.
- Court outcomes which resulted in a not-guilty verdict.
A spent conviction scheme allows certain offences to no longer show up on national criminal records checks once a certain amount of time has passed.
Section 7 of the Criminal Records Act 1991 (NSW) states that all offences are capable of being “spent” in NSW, except for convictions:
- For which a prison sentence of more than 6 months has been imposed,
- For sexual offences,
- Imposed against bodies corporate,
- Prescribed by the regulations to not be spent.
Sexual offences which are excluded from the spent conviction scheme include:
- All major sexual offences under the Crimes Act 1900 (NSW) including sexual assault, sexual touching, sexual act and all sexual offences involving children;
- The offence of “obscene exposure” under s5 of the Summary Offences Act 1988 (NSW) and
- Offences committed with the intention of committing a sexual offence, such as breaking into a house to commit a serious indictable offence under s112 of the Crimes Act 1900 (NSW).
A conviction will be spent if a person has not been convicted of another offence within a relevant “crime-free period”.
For all convictions in all courts (except for the Children’s Court) the “crime-free period” is 10 years after a person’s conviction. For orders of the Children’s Court the “crime-free period” is 3 years after the particular order or finding.
By Jarryd Bartle.