Although there are some limited exceptions, in general terms, you are not obliged to disclose a conviction which has been ordered to be spent. Generally the issue of a person’s criminal record and the disclosure of it is only relevant to convictions which are current and have not been spent.
Spent Convictions W.A.
Having a conviction recorded against your name can create great difficulties in a person’s life. Many employers today require prospective employees to provide a police clearance (both federal and state) as part of the application process for a job.
A police clearance showing prior convictions (even lesser convictions) can have a detrimental and prejudicial affect because the conviction, in many cases, is likely to jeopardize a person's chances of attaining employment.
Which Jobs Require A National Police Check?
Certain types of employment or occupational licensing require a National Police Certificate or National Police History Check including:
- Police officers, prison or transport officers.
- Employees of schools, hospitals and child care centres.
- Casino employees
- Licensed builders, plumbers, electricians and other trades as part of the licensing process. (See a full list of police checks for occupational licensing purposes in Western Australia)
For a full list of jobs requiring a police check which may show prior convictions. Spent convictions also need to be considered when you're planning to work with children and require a Working With Children Check.
Convictions can also affect the ability of a person to travel to certain destinations. The U.S and Canada for example are notoriously strict on allowing individuals who have a criminal record entry into their country.
Why Apply To Have Your Conviction Spent?
If your conviction is spent then generally you are not legally obliged to disclose to anyone the previous conviction or any information relating to it. The issue of a person’s criminal record and the disclosure of it is only relevant to convictions which are current and have not been spent.
The law in Western Australia allows for an individual to apply to the Commissioner of police to have a conviction spent which follows a ten year offence free period. However for serious convictions that were recorded in respect of an offence dealt with in the District Court or Supreme Court any application to have the conviction spent must be made to the court itself.
The law in Western Australia also provides a regime where an application can be made to the court for a conviction to be spent immediately after sentencing. Under these circumstances the offence is not recorded as a conviction. Under the Sentencing Act WA, a court sentencing an offender is not to make a spent conviction order unless –
(a) It considers that the offender is unlikely to commit such an offence again and having regard to –
(i) the fact that the offence is trivial or
(ii) the previous good character of the offender…the court considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
Generally these applications are made in respect of lesser convictions dealt with in the Magistrates Court. Most convictions that are disposed of in the Magistrates Court have the potential to be ordered spent by the court. However there are some instances where the applicant is precluded from having their conviction declared spent. These types of more serious convictions might include:
- convictions for which imprisonment (to be suspended or served immediately) was ordered,
- convictions for which an Intensive Supervision Order was imposed,
- convictions imposed against corporate entities,
- convictions for offences which are considered too serious (such as life imprisonment).
There is a full list of convictions/instances which exempt and individual from applying for a spent conviction. These can be found in the section "Schedule 3: Exceptions to Part 3" in the Spent Convictions Act 1988.
If you have been charged with an offence it is important to seek competent legal advice and representation from a criminal lawyer to guide you through the court process, negotiate with the law enforcement authorities and achieve the best possible outcome.
My office has a vast experience making spent conviction applications to the court having handled countless similar type matters. If you are in need of advice and representation in making an application for a spent conviction to the court call my office without delay. We will assist you to arrange and present to the court all the relevant documentation necessary to assist in the application process.
Andrew Williams is also a member of the panel of practitioners for Legal Aid WA and frequently provides criminal law advice and representation to applicants on a grant of legal aid.
You can apply for a conviction to be spent at the time you are being sentenced, or apply to have an old conviction spent after enough time has passed. In WA you can apply to the commissioner of police or (depending on the seriousness of the charge) to the District Court to have a conviction spent after a waiting period of 10 years, plus any length of the term of imprisonment that was imposed for the offence. You must not have committed any further offences in that 10 year time period.
A spent conviction will not be listed on a state or national police certificate.
Under the Crimes Act 1914 a Commonwealth (Federal) conviction can be spent if the following conditions are met:
- You didn't go to jail or were only jailed for less than 31 months.
- It has been 10 years since the date of the conviction for an adult or 5 years for a juvenile offender.
- The individual has not re-offended during the 10 or 5 years.
- No other statutory or prescribed exclusion applies.