What Is the Difference Between a Conviction and a Non-Conviction?

If you have been charged with a criminal offence, you may have heard the terms “conviction” and “non-conviction” used in court. The difference can have significant consequences for your future. 

A recorded conviction may affect your employment, professional registration, travel and ability to obtain certain licences. A non-conviction, on the other hand, allows a court to find you guilty without recording a conviction against you. Understanding the difference is important before deciding how to resolve your case.

What Is a Conviction?

A conviction is a formal finding recorded by the court after a person has been found guilty of a criminal offence. A conviction is generally ordered when the Magistrate believes that this is a serious example of the offence, or if you have relevant prior matters.

A conviction may be recorded following:

• a plea of guilty; or

• a finding of guilt after a contested hearing or trial.

If a conviction is recorded, it may appear on your criminal record and can have long-term consequences beyond the sentence imposed by the court.

Depending on the nature of the offence and your personal circumstances, a conviction may affect employment opportunities, working with children checks, professional registrations, travel to certain countries and applications for licences.

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.

This discretion is available under 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 offending.

Whether a non-conviction is available depends on the type of offence and the circumstances of your case.

How Does the Court Decide Whether to Record a Conviction?

When deciding whether to record a conviction, the court must consider a number of factors, including:

• 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.

No single factor determines whether a conviction will be recorded.

How Does the Spent Convictions Scheme Affect Convictions?

Victoria has a spent convictions scheme under the Spent Convictions Act 2021 (Vic).

For many adults, a recorded conviction will automatically become spent after a conviction period of 10 years, provided it is not a serious conviction and you do not commit further offences that restart the conviction period. Once a conviction is spent, it will generally no longer appear on most criminal record checks, although there are important exceptions.

By contrast, where a court finds you guilty without recording a conviction, the conviction is generally spent immediately once any conditions attached to the sentence have been completed. This means that, in many cases, a non-conviction provides far greater protection from the long-term consequences of a criminal record.

Can I Ask the Court Not to Record a Conviction?

Yes.

If a non-conviction is available for your offence, your lawyer can ask the court to exercise its discretion under section 8 of the Sentencing Act 1991 (Vic).

The court will consider all of the circumstances, including your personal history, the seriousness of the offence, your prospects of rehabilitation and the impact that recording a conviction would have on your future.

Supporting material such as character references, evidence of counselling, employment records and psychological reports may assist in appropriate cases.

Does Pleading Guilty Mean I Will Receive a Conviction?

No.

Many people who plead guilty receive a finding of guilt without conviction.

An early plea of guilty, genuine remorse, rehabilitation, limited prior offending and strong personal circumstances may all improve your prospects of obtaining a non-conviction.

However, the court will always consider the seriousness of the offending before deciding whether it is appropriate to exercise its discretion.

Speak to Wilkinson Lawyers

If you have been charged with a criminal offence and are concerned about receiving a conviction, Wilkinson Lawyers can help. We regularly represent clients throughout Victoria seeking non-conviction outcomes where they are available. We can advise whether a non-conviction is realistic in your case, prepare persuasive plea submissions and present the strongest possible argument to minimise the long-term consequences of a criminal charge.

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