Can a Conviction Be Removed?

If you have a criminal conviction, you may be wondering whether it can be removed from your record. In Victoria, a conviction may become spent immediately, automatically after the relevant conviction period, or following a successful application to the Magistrates’ Court. 

A conviction may also be overturned through an appeal in appropriate circumstances. The correct process depends on the type of conviction, the sentence imposed and how much time has passed.

What Does It Mean for a Conviction to Be Spent?

Victoria’s spent convictions scheme is governed by the Spent Convictions Act 2021 (Vic).

When a conviction becomes spent, it generally no longer forms part of your criminal record. In most circumstances, you are not required to disclose the conviction and it will not appear on an ordinary National Police Check.

A spent conviction is therefore treated differently from an active conviction for many employment, volunteering and general disclosure purposes.

However, there are exceptions. Spent convictions may still be disclosed for certain regulatory, licensing, law enforcement, court and screening purposes.

Are Some Convictions Spent Immediately?

Yes.

Some convictions become spent immediately without any application being made.

This includes a finding of guilt where the court does not record a conviction. Where the sentence has conditions attached to it, the finding generally becomes spent once those conditions have been completed.

Certain findings relating to mental impairment, offences committed by children under 15, some Children’s Court fines and infringement convictions may also become spent immediately.

This is one of the important differences between receiving a conviction and receiving a finding of guilt without conviction.

Do Convictions Become Spent Automatically?

Many convictions become spent automatically after the conviction period expires.

For an adult, the conviction period is 10 years. For a person who was a child or young offender at the time of the finding of guilt, the period is 5 years.

The conviction period begins on the date the finding of guilt was made.

A conviction will generally become spent automatically at the end of that period if it is not classified as a serious conviction. A subsequent conviction may restart the conviction period, although some minor findings and penalties do not have that effect.

No court application is required where a conviction qualifies to become spent automatically.

Can I Apply to Have a Conviction Spent?

Yes.

Certain serious convictions can become spent following an application to the Magistrates’ Court. 

A serious conviction includes:

• A conviction for which more than 30 months’ imprisonment or detention was imposed.

• A conviction for a sexual offence.

• A conviction for a serious violence offence.

The relevant conviction period must have expired before the application can be made. This will generally be 10 years for an adult and five years for a person who was a child or young offender at the time of the finding of guilt.

Not every serious conviction is eligible for a spent conviction order.

For example, an adult convicted of a sexual offence or serious violence offence may be eligible to apply where no term of imprisonment was imposed. 

Different criteria apply where the person was under 21 at the time of sentencing. Legal advice should be obtained about whether a particular conviction satisfies the eligibility requirements.

How Do I Apply for a Spent Conviction Order?

An application is made to the Magistrates’ Court using the prescribed application form.

The applicant must ordinarily provide a National Police Check that is less than six months old and any supporting material they want the court to consider. This may include evidence of rehabilitation, employment, community involvement and the applicant’s conduct since the conviction.

The application must also be served on the Chief Commissioner of Victoria Police and the Victorian Attorney-General.

The court will then consider the application and determine whether a spent conviction order should be made. There is no filing fee for the application.

What Will the Court Consider?

The court will consider the nature and seriousness of the original offending together with the applicant’s conduct since the conviction.

Relevant matters may include:

• The circumstances of the offence.

• The sentence originally imposed.

• The time that has passed since the conviction.

• Whether the applicant has committed further offences.

• Evidence of rehabilitation.

• The applicant’s current personal circumstances.

• The impact the conviction continues to have.

• Any risk to the community.

• The views of Victoria Police or the Attorney-General.

A spent conviction order is discretionary. Meeting the basic eligibility criteria does not guarantee that the application will succeed.

Is a Spent Conviction the Same as Erasing the Court Record?

Not entirely.

The spent convictions scheme provides that a spent conviction does not form part of a person’s criminal record and generally does not need to be disclosed. However, it does not mean that every historical court or police record relating to the case is physically destroyed.

The conviction may still be accessed or disclosed where an exception under the legislation applies.

For most ordinary criminal record checks and employment purposes, however, having a conviction spent can substantially reduce its ongoing impact.

Can I Appeal a Conviction Instead?

An appeal is different from an application to have a conviction spent.

An appeal challenges the original finding of guilt, the recording of the conviction, the sentence imposed or a combination of those matters. If an appeal against conviction succeeds, the conviction may be set aside.

Appeals are subject to strict time limits and legal requirements. A spent conviction application does not argue that the original conviction was wrong. Instead, it asks the court to limit the continuing effect of an otherwise valid conviction after the relevant period has passed.

Speak to Wilkinson Lawyers

If you have a criminal conviction and want to know whether it can become spent, Wilkinson Lawyers can help. We can assess whether the conviction is already spent, whether it will become spent automatically or whether you may be eligible to apply to the Magistrates’ Court for a spent conviction order. We can also advise whether an appeal or another legal process is more appropriate in your circumstances.

Contact Jess Wilkinson on 0468 364 121 or jess@wilkinsonlawyers.com.au to discuss your matter and obtain advice about the best way forward.