What is the Effect of a Conviction?Stephen Dayeian
When an offender is sentenced by a court in New South Wales for a crime, they either receive a conviction or a non-conviction penalty.
Most clients charged with relatively minor offences have the primary goal of receiving a non-conviction penalty (commonly known in the community as a ‘section 10’).
However, regardless of whether an offender receives a conviction or a non-conviction penalty, a common question asked by a client is:
“In what circumstances do I have to disclose this penalty to anyone?”
The answer depends on whether the conviction has been spent.
The Criminal Records Act 1991 (NSW) (“Criminal Records Act”), which commenced on 11 May 1991, was introduced with the following object:
To implement a scheme to limit the effect of a person’s conviction for a relatively minor offence if the person completes a period of crime-free behaviour. On completion of the period the conviction is to the regarded as spent and, subject to some exceptions, is not to form part of that person’s criminal history.
All convictions (which, for the purposes of the Criminal Records Act, includes a non-conviction penalty) can be spent, regardless of whether they occurred in New South Wales, except:
- convictions for which a full-time prison sentence of more than 6 months was imposed against an adult offender,
- convictions for certain sexual offences (for example, sexual assault),
- convictions imposed against bodies corporate, and
- convictions prescribed by the regulations (of which there are presently none).
When is a Conviction Spent?
A conviction will be spent if 10 years have passed since the conviction (or 3 years if the conviction was imposed by the Children’s Court), providing the person has not, during this period been:
- convicted of any offence punishable by imprisonment,
- in prison, or
- unlawfully at large (that is, a fugitive).
A conviction for a traffic offence under the Road Transport Act 2013 (NSW) involving the use of a vehicle, for example, drink driving, is to be disregarded in calculating the crime free period for a non-traffic offence.
Conversely, a conviction for a non-traffic offence is to be disregarded in calculating the crime free period for a traffic offence under the Road Transport Act 2013 (NSW) involving the use of a vehicle.
If a person received a non-conviction penalty, this conviction will be spent immediately (or, if applicable, at the expiration of any additional/further conditions imposed).
Consequences of a Spent Conviction
When a conviction is spent, a person will not be required to disclose anything about the conviction to any other person, for example, a potential employer.
However, spent convictions must be disclosed if:
- a person is seeking appointment or employment as a judge, magistrate, justice of the peace, police officer, a member of staff of Corrective Services NSW, teacher or teachers aid, a lawyer, a Crown Prosecutor, a DPP officer, a Crime Commission officer, a ICAC officer or an officer or consultant to the LECC, or
- it is required for court proceedings, for example, if a person is being sentenced.