For those who regularly travel overseas, who work in government jobs, in finance or with children, or for those who generally wish to avoid a criminal conviction to maintain their reputation of good character, obtaining a Conditional Release Order or dismissal without conviction is imperative.
Avoiding a conviction
A Court can, following a finding of guilt, exercise its discretion and not record a conviction. This discretion can be utilised under the following sections of the Crimes (Sentencing Procedure) Act 1999:
- Section 10(1)(a): where there is a finding of guilt, but the charge is dismissed without recording a conviction
- Section 10(1)(b): where there is a finding of guilt, but the person is discharged under a conditional release order in accordance with section 9(2) of the Crimes (Sentencing Procedure) Act 1999
- Section 10(1)(c): where there is a finding of guilt, but the person is discharged, without recording a conviction, on the condition that the person enter into an agreement to participate in an intervention program
What is the effect of no conviction being recorded?
Even though a conviction is not recorded, the matter is not wiped from your police or court record. The police will keep a record of all arrests, court appearances, police warnings, fingerprints, convictions, non-convictions and even matters where you were found not guilty. If you are charged in the future, the court will have access to your history of previous court matters.
Your criminal record lists the convictions recorded against you and any non-conviction orders that are still in force. If you are sentenced to a Conditional Release Order without conviction, or receive an order under section 10(1)(b), the offence will remain on your criminal record until the order has been successfully complied with. For example, if you receive a 10-month conditional release order, the offence will remain on your criminal record for the duration of those 10 months.
As a formal conviction has not been entered it may be that in certain circumstances you are not required to disclose the offence when asked to do so for employment or travel purposes. This will depend on the nature of the question and the specific disclosure requirements. You should seek legal advice before deciding whether or not to disclose previous offences.
In NSW, we have a regime of which involves many convictions becoming ‘spent’.
Most convictions are capable of becoming ‘spent’, meaning you will no longer be obliged to disclose the conviction, and any questions about your criminal history will not refer to this conviction.
A conviction is spent after a crime-free-period of 10 years for adults, and 3 years for children. Meanwhile, a dismissal under section 10(1)(a) is spent immediately after the finding is made and a conditional discharge under section 10(1)(b) becomes spent at the end of the good behaviour period.
Not all convictions are capable of becoming spent. Convictions which will remain permanently on a criminal record include sexual offences or convictions which resulted in a prison sentence of more than 6 months.
There are further exceptions where spent convictions will remain relevant, for example, in certain areas of employment including child care, teaching, firefighting, policing and the judiciary.
Can I remove offences from my criminal record?
Spent convictions will no longer appear on your criminal record after the relevant period of time has elapsed. You must wait until the relevant period of time has elapsed, at which point the conviction will automatically be removed from your criminal record. Unfortunately you cannot apply to have a conviction removed from your record any earlier.
What if I have a criminal record as a child?
For information on offences committed when you were under 18, see our page on juvenile records.