If you have been charged and convicted of an offence in Western Australia, that conviction will form part of your criminal record. This can have an impact on various facets of your everyday life. For example, it can limit your employment prospects as some employers require police checks as part of their recruitment process. If there are blemishes on your record, it may impact your chances of obtaining your desired employment.
In some circumstances, you can apply to have your conviction ‘spent’. A spent conviction is a conviction that is not shown if you obtain a police clearance. This means that although the conviction still stands, you are not under any obligation to disclose it if you do not wish to do so. However, it is important to note that a spent conviction does not vanish from your record, and can still be identified and taken into account in some circumstances. One example of this is where you are applying for a working with children check.
What types of convictions can become spent?
Serious convictions and lesser convictions are dealt with in separate ways in our justice system. A serious conviction is one where you have been sentenced to imprisonment for more than one year or a fine of $15,000 or more.
If your conviction is a serious conviction, you can apply to the District Court for a spent conviction, however the court will not make an order that your conviction is spent until you have waited a certain amount of time since you were sentenced. In most cases, the waiting period is 10 years plus any term of imprisonment imposed. However, there are some circumstances where the waiting period is less. For instance, there are some drug offences where the waiting period is 3 years.
A lesser conviction is essentially any conviction that is not a serious conviction as established above. Unlike serious convictions, these are not dealt with by the District Court. Instead, you can apply to the Commissioner of Police to have your conviction spent. Again, there is a waiting period and you must wait for it to lapse before you can apply.
How do I apply for a spent conviction?
If you have not yet been sentenced, you (or your lawyer) can ask the court to make a spent conviction order at the sentencing hearing.
If you are seeking to have a past serious conviction declared spent after the waiting period, you can apply to the District Court by filing an Notice of Motion and a supporting affidavit.
If you are seeking to have a past lesser conviction spent, you simply need to apply for a police clearance. In doing so, this will simultaneously request that any prior convictions be removed from your record. If the convictions are lesser convictions, they will be removed from your record.
What factors will the court consider when making a spent conviction order?
Whilst you can apply to have your conviction spent, this does not mean the court will automatically make the order. There are a number of matters the court needs to consider before deciding whether the conviction should be spent. These matters are set out in the Sentencing Act 1995 (WA).
Firstly, the court cannot make a spent conviction order unless satisfied that you are unlikely to commit the offence again. If you have engaged in similar criminal behaviour in the past, this may be something that prevents you from obtaining a spent conviction. On the contrary, if you have no prior criminal history, this may be something that works in your favour in obtaining a spent conviction order.
Secondly, the court must be satisfied that you should be relieved of the burden of the conviction. In deciding this, the court will consider the severity of the offence and whether or not you are a person of ‘previous good character’. In considering whether or not you are a person of previous good character, the court may consider character references from people who can attest to your qualities and attributes.
Lastly, if your sentence involves a Pre-Sentence Order (“PSO”), the court must not make the spent conviction order unless the offence relating to the PSO was a simple offence and the court is satisfied that you have complied with any requirements imposed as part of your PSO.
If you have been convicted of an offence and would like to know your prospects of success in obtaining a spent conviction, our criminal lawyers can guide you in the right direction and prepare the relevant documents for your application.
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