Will I Get a Criminal Record?

One of the first questions many people ask after being charged with a criminal offence is whether they will end up with a criminal record. The answer depends on a number of factors, including the type of offence, whether you are found guilty, the sentence imposed by the court and whether the court records a conviction. 

In many cases, it is possible to avoid a criminal record, but there are no guarantees. If you are concerned about the impact of a conviction on your future, it is important to obtain legal advice before your case is finalised.

What Is a Criminal Record?

A criminal record generally refers to a record of criminal findings and convictions maintained by law enforcement agencies and disclosed in certain circumstances, such as criminal history checks.

If a court records a conviction against you, it will appear on your criminal record and can affect future employment, professional registration, licensing, travel and other opportunities. 

However, not every court outcome results in a recorded conviction.

Does Every Guilty Finding Result in a Criminal Record?

No.

In Victoria, a court has the discretion in many cases to find you guilty without recording a conviction.

When deciding whether to record a conviction, the court considers factors such as:

• 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.

Whether a conviction is recorded depends on the circumstances of each individual case.

Can I Avoid a Criminal Record?

In some cases, yes.

There are several ways a person may avoid a criminal record, including:

• successfully completing a diversion program;

• receiving a finding of guilt without conviction; or

• successfully defending the charge and being found not guilty.

The most appropriate outcome depends on the evidence, the offence and your individual circumstances.

Not every case is suitable for diversion or a non-conviction, and obtaining legal advice is important before deciding how to proceed.

Does Pleading Guilty Mean I Will Have a Criminal Record?

Not necessarily.

Many people who plead guilty are able to avoid a recorded conviction.

An early plea of guilty, together with evidence of remorse, rehabilitation, counselling, strong character references and limited prior offending, may improve your prospects of receiving a non-conviction where one is available.

The court will always consider the seriousness of the offending alongside your personal circumstances before making its decision.

What If I Already Have a Criminal Record?

Having previous convictions does not automatically mean another conviction will be recorded.

However, a history of prior offending may reduce the likelihood of avoiding a conviction, particularly if the offences are similar in nature or demonstrate an ongoing pattern of offending.

The court will consider your entire criminal history together with the circumstances of the current offence.

What Is the Spent Convictions Scheme?

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 and, in most circumstances, you do not have to disclose it to employers or other organisations. 

By contrast, where a court finds you guilty without recording a conviction, the conviction is generally spent immediately once any conditions attached to your sentence have been completed. This is one of the reasons why obtaining a non-conviction can have significant long-term benefits, particularly for employment and future opportunities. 

Some convictions, including certain serious violence and sexual offences, are not automatically spent and may require an application to the Magistrates’ Court or may never become spent.

Can a Lawyer Help Me Avoid a Criminal Record?

Yes.

While no lawyer can guarantee that you will avoid a criminal record, careful preparation can significantly improve your prospects where the law allows.

A lawyer can advise whether diversion may be available, whether there is a basis to seek a finding of guilt without conviction, whether the charge can be defended and what material should be prepared to maximise your chances of achieving the best possible outcome.

Obtaining legal advice early often makes a significant difference to the way a matter is resolved.

Speak to Wilkinson Lawyers

If you have been charged with a criminal offence and are concerned about getting a criminal record, Wilkinson Lawyers can help. We regularly represent clients throughout Victoria seeking diversion, non-conviction outcomes and other sentencing options designed to minimise the long-term consequences of criminal charges. We can assess your case, explain your options 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.