How Do I Get a Non-Conviction?

If you have been charged with a criminal offence, one of your biggest concerns may be whether you will end up with a criminal record. In Victoria, a court has the discretion in many cases to find you guilty without recording a conviction. 

While there is no automatic entitlement to a non-conviction, it is available in appropriate cases. Whether you receive a non-conviction depends on the offence, your personal circumstances and the submissions made to the court.

What Is a Non-Conviction?

A non-conviction occurs when a court finds you guilty of an offence but decides not to record a conviction against you.

This is authorised by section 8 of the Sentencing Act 1991 (Vic).

Although you have still been found guilty, the absence of a recorded conviction can significantly reduce the long-term consequences of the offence. For many people, avoiding a conviction can assist with employment, professional registration, travel and future opportunities.

Not every offence is eligible for a non-conviction, and the decision is entirely at the discretion of the court.

How Does the Court Decide Whether to Record a Conviction?

When deciding whether to record a conviction, the court must consider the factors set out in section 8 of the Sentencing Act 1991 (Vic).

These include:

• the nature of the offence;

• your character and prior criminal history;

• your age;

• the impact that recording a conviction would have on your economic or social wellbeing; and

• the effect a conviction may have on your employment prospects.

The court balances these matters against the seriousness of the offending and the purposes of sentencing.

Does Pleading Guilty Mean I Can’t Get a Non-Conviction?

No.

Many people who receive a non-conviction have pleaded guilty.

In fact, an early plea of guilty often demonstrates acceptance of responsibility and remorse, both of which can assist when the court is deciding upon the appropriate sentence.

However, simply pleading guilty does not guarantee that a conviction will be avoided.

What Can Improve My Chances?

Every case is different, but there are a number of matters that may improve your prospects of receiving a non-conviction.

These include:

• having little or no prior criminal history;

• entering an early plea of guilty;

• demonstrating genuine remorse;

• taking responsibility for your actions;

• engaging in counselling or treatment where appropriate;

• making efforts towards rehabilitation before the court hearing; and

• presenting strong material about your personal circumstances.

Character references, evidence of employment, psychological reports and proof of rehabilitation can all assist in appropriate cases.

Can Serious Offences Receive a Non-Conviction?

Sometimes, but it is less common.

Generally speaking, the more serious the offence, the less likely it is that a court will exercise its discretion not to record a conviction.

Where offending involves significant violence, serious dishonesty, substantial harm to victims or lengthy criminal histories, a conviction is much more likely to be recorded.

Each case, however, turns on its own facts, and there is no offence for which a conviction is automatically required unless legislation specifically provides otherwise.

Can a Lawyer Help Me Obtain a Non-Conviction?

Yes.

While no lawyer can guarantee that a court will impose a non-conviction, careful preparation can make a significant difference.

A lawyer can identify the matters that are most relevant to the court, obtain supporting material, prepare persuasive plea submissions and explain why the discretion under section 8 should be exercised in your favour.

Presenting your personal circumstances effectively is often just as important as addressing the offending itself.

Speak to Wilkinson Lawyers

If you have been charged with a criminal offence and are hoping to avoid a recorded conviction, Wilkinson Lawyers can help. We regularly represent clients in courts throughout Victoria and prepare detailed plea submissions seeking non-conviction outcomes where they are available. We can advise whether a non-conviction is realistic in your case and present the strongest possible argument on your behalf.

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