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No Conviction Recorded – Not the Answer for Some Offences

It’s commonly understood that having your charge dealt with without conviction means it won’t show up on a future criminal record check. Although that’s true in many cases, for...

Justin Wong

It’s commonly understood that having your charge dealt with without conviction means it won’t show up on a future criminal record check.

Although that’s true in many cases, for some offences the result may still show up even if the matter is dismissed under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.

The Spent Conviction Scheme and Exclusions

When you’re found guilty of an offence and no conviction is recorded, the matter isn’t automatically taken off your disclosable criminal record. It must first become “spent” under the Criminal Records Act 1991.

If you receive no conviction with a Conditional Release Order, it becomes spent when you successfully complete the period of good behavior. Until that time it is still classified as a “conviction” under the legislation and is likely to show up on a criminal records search conducted, for example, by an employer.

However, for some offences like sexual assault, they can never become spent. They are excluded from the spent conviction scheme. Other commonly charged offences that can never become spent include:

  1. Sexual Touching (indecent assault)
  2. Obscene Exposure
  3. Filming a person engaged in a private act of private parts
  4. Threatening to or sending an intimate image without consent
  5. Choking with intent to commit an indictable offence
  6. Breaking and entering.

This means for commonly charged Local Court offences such as obscene exposure and sexual touching, even if the matter is dismissed under section 10, or no conviction is recorded, it will still show on a person’s disclosable criminal history.

Interestingly, convictions for offences such as assaults on police officers, affray, intentional infliction of grievous bodily harm, fraud and money laundering can all become spent, provided the sentence isn’t 6 months imprisonment or more. This reflects the way in which sexual offences are viewed in NSW.