The Victorian parliament has implemented a spent convictions scheme with the recent introduction of the Spent Convictions Act 2021 (‘The Act’).
The scheme implements a number of ways in which convictions can be removed from a person’s criminal record (‘spent’) and become not disclosable unless an exception applies.
The Act also allows for one’s criminal history to be removed from a person’s record automatically, or on application to the Magistrates’ Court. The spent convictions act also provides restrictions on the collection, use and disclosure of convictions.
Examples of ‘spent’ convictions in practice.
There are a number of different types of convictions that can be spent:
- Convictions Spent with Immediate Effect
- Convictions Spent on Expiry of Conviction Period
- Serious Convictions Spent on Application to the Magistrates’ Court
Convictions Spent with Immediate Effect
A conviction is spent on the day the person is convicted of the offence in the below scenarios:
- Where the court does not record a conviction
- Where the conviction is a qualified finding of guilt under the Crimes (Mental Impairment and Unfitness to be Tried) Act
- Where the conviction is for an offence committed when the person was under the age of 15
- Where the penalty imposed is a fine imposed by the Children’s Court
- Where the conviction is for an infringement.
Convictions Spent on Expiry of Conviction Period
In line with the Spent Convictions Act, the convictions of a person under the age of 21, convictions become spent 5 years from the date the person was found guilty.
In the case of any other person, convictions become spent 10 years from the date the person was found guilty.
However, if a person is convicted of a subsequent offence during the conviction period, the conviction period for the first offence resets to the date the person is found guilty of the subsequent offence.
This does not apply to a ‘serious conviction’ (see below).
Serious Convictions Spent on Application to the Magistrates’ Court
A serious conviction is a conviction where a term of imprisonment of more than 30 months was imposed, or a conviction for a sexual offence or for a serious violent offence.
As stated in the 2021 Spent Convictions Act, a person convicted of a serious conviction may apply to the Magistrates’ Court for an order that the conviction is spent if:
- The person was under the age of 21; or
- If the person was not under the age of 21:
- No term of imprisonment was imposed for a serious violent offence or sexual offence; or
- A term of imprisonment of less than 5 years was imposed for an offence which was not a serious violent or sexual offence.
A person is not able to apply for a spent conviction order for a serious offence until the conviction period. This is 5 years for
a person under 21 and 10 years for a person over 21.
A Magistrate may make a spent conviction order without conducting a hearing, or may require the person making the application to appear in court to make the application.
If a Magistrate refuses to make a spent conviction order, a person is unable to re-apply unless 2 years or more have passed since the refusal. The person will have to provide new information in support of the application.
If making an application for a spent conviction order, it is important that the application is properly prepared. If not prepared
properly, there is a high likelihood of refusal.
It is important to note that even if a conviction becomes spent, it can still be disclosed to police as well as to courts or tribunals for subsequent hearings. Spent convictions can also be disclosed in specific cases such as working with children checks, immigration proceedings, gaming and liquor licenses and admission to the legal profession.
 Section 20.
 Section 7.
 Section 8(1)(a).
 Section 8(1)(b).
 Section 10. This does not apply in cases where a person is fined less than 10 penalty units, where the only penalty is to pay restitution or compensation, where no penalty was imposed or where the court does not impose a conviction.
 Section 11.
 Section 11(2).
 Section 11(4).
 Section 21.
 Table 1 – Specific Disclosures
Applying for a Spent Conviction
Should you wish to make a spent conviction application, the team at Slades & Parsons can assist you. Our team of experienced criminal lawyers can help you in drafting the application. We can also appear in court if necessary.