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December 16, 2014
A Spent Conviction Order: What Benefit Are They?

By Steven Blyth

In the past decade many employers require a person as a condition of obtaining employment or retaining employment, to have a ‘clean’ criminal record.

In order to prove that a person has a ‘clean’ record, an application is made to the police for a certificate indicating what convictions (if any) a person has.

Many criminal offences (including traffic offences) may appear to be relatively ‘low end’, but at law result in ‘convictions’ and accordingly, will form part of a person’s criminal record.

The Consequences of a Conviction

The Sentencing Act 1995 recognises that in some circumstances, the effect of a person having a ‘conviction’ may have consequences and may create a punishment beyond what would be fair in all the circumstances.

Under section 45 of the Sentencing Act, a person can apply for what is known as a ‘spent conviction order.’ A court shall not however make a spent conviction order unless it considers that the following three prerequisites are satisfied:

1. The offender is unlikely to commit such an offence again,

2. The offence is trivial or the offender must be shown to be of previous good character, and

3. The court considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

Even though all three criterion must exist to make a spent conviction order, it does not automatically follow that a spent conviction order will be granted – it remains in the discretion of the court to grant a spent conviction order and other factors such as the seriousness of the offence are taken into account.

Accordingly, many people seek legal advice and representation in relation to offences to which they will plead guilty and require the assistance of a solicitor to make an application for a spent conviction order.

Obtaining a Spent Conviction Order

Solicitors with the benefit of case precedents, are able to identify what evidence and circumstances maximise a person’s prospects of obtaining a spent conviction order.

The courts do not lightly grant spent conviction orders but equally, are prepared to make spent conviction orders especially when it can be demonstrated that there will be further significant consequences to an offender, particularly relating to their employment and when a person’s employment may be terminated in the absence a spent conviction order being made.

Contact Steven Blyth, Partner at LBH on sblyth@lbandh.com.au