For many clients facing criminal charges for the first time, a primary concern for them are the implications and consequences of having a criminal record. Until recently the only way to avoid a criminal record in Victoria when accepting responsibility for committing a crime was through a Criminal Justice Diversion Program ('Diversion'). However, the enactment of the Spent Convictions Act 2021 (Vic) now creates further opportunities for people pleading guilty to criminal offending to avoid having a criminal record.
Criminal Records
Having a criminal history, whether or not a conviction has been recorded, can affect people in two main ways. Firstly, it can be accessed by police when investigating future suspected criminal activity and replied upon in subsequent criminal proceedings against you. Secondly, and of most common concern, is that your criminal record may appear on official police records requested by you, such as National Police Checks.
A National Police Check that reveals prior findings of guilt and/or convictions may have implications for housing, access to services, and employment and job prospects. It may prevent you from entering certain professions such as public office, police, defence and registration professions such as doctors, social workers and psychiatrists, nurses, dentists and optometrists. It also may have implications in relation to overseas travel as some countries may require you to provide information on prior criminal history in determining if they will grant you a visa; and others have laws that stop people with convictions or findings of guilt from entering the country altogether.
Diversion
Diversion, as the name suggests, is aimed at diverting offenders away from the criminal justice system, specifically first-time offenders, or people with little or dated prior criminal history. To be eligible for diversion, first the prosecution must support the application for diversion and then a magistrate must grant the application, with the accused person accepting responsibility for their role in the offending. The prosecution and the Magistrate will take into consideration any prior criminal history, the circumstances and seriousness of the offending as well as the victim's views, should they provide them.
If the Magistrate agrees that an accused is suitable for diversion, they will be placed on a Diversion Plan and required to follow and complete certain conditions within the duration of the Diversion Plan, such as:
- Writing a letter of apology to the victim
- Writing a letter of gratitude to the prosecution;
- Engaging in counselling relevant to the offending;
- Undertaking an education program or community work; or
- Donating to a charity.
The primary benefit of Diversion is that successful completion of the Diversion Plan allows an accused person to avoid a criminal record and engage in activities aimed at rehabilitation. Despite this, there are some matters for which diversion is not available.
Spent Convictions
Previously, where diversion was not appropriate or available, this was end of the line for clients wishing to avoid having a finding of guilt recorded, whether with or without conviction. However, with the enactment of the Spent Convictions Act 2021 (Vic) an accused pleading guilty now has further options for avoiding a recording of guilt. Compared to diversion, the Spent Convictions Act 2021 (Vic) aims to reduce unfair barriers to Victorians who have committed criminal offences by allowing certain convictions to be spent. Once a conviction is spent, it no longer forms part of your criminal history and, in most cases, is not required to be disclosed.
There are three ways in which a conviction may be spent: immediately; automatically after a conviction period has elapsed; or upon court application and subsequent court order. This article focuses on immediately spent convictions as a means of avoiding a criminal record.
Immediately Spent Convictions
From 1 December 2021, certain convictions will be immediately spent where upon pleading guilty, a person is sentenced and:
- The magistrate exercises discretion not to record a conviction; or
- The conviction is a qualified finding of guilt by reason of mental impairment or unfitness to be tried under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or
- The conviction is for an offence committed when the person was under 15 years of age; or
- The person received a fine in the Children's Court; or
- The conviction is an infringement conviction.
The sentence will remain spent and therefore will not show up on a police record check (unless an exemption applies), provided the accused does not reoffend within the specified period:
- 5 years if they were under 18 at the time of sentence; or
- 10 years if they were over 18 at the time of sentence.
The time period for a spent conviction commences on the day the conviction is recorded but will restart if within that five or ten-year period the person receives another conviction.
Good Behaviour Bonds / Adjourned Undertakings
Most commonly it is Good Behaviour Bonds, imposed by the Magistrate without conviction which are then spent, however due to their conditions they are not immediate. Good Behaviour Bonds ('GBB'), also referred to as Adjourned Undertakings, arise where an accused person pleads guilty to a criminal offence and makes a promise to the court to be of good behaviour for a fixed period of time. A GBB is most commonly imposed for a period of 12 months but can be of greater duration. It must include the condition that the accused person be of good behaviour for the duration of the order, but may also include any other conditions the Court deems relevant, such as:
- To complete counselling, or offence-related programs;
- To engage or continue engagement with mental health services and professionals; or
- To make a financial donation to the court fund.
Where a Magistrate sentences an accused person to a GBB without conviction, the Spent Convictions Act 2021 (Vic) operates such that the finding of guilt will be spent after the conditions of the GBB have been completed. This sees GBB operating similarly to a diversion plan and closely connected to the spent conviction scheme, where upon its successful completion an accused will not have a criminal record.
Conclusion
Both findings of guilt, that is non-conviction outcomes, and convictions pose immense barriers to getting a job, housing, or accessing services for many people and are a cause of great disadvantage.
As such, the Spent Convictions Scheme in Victoria is a welcome development in the criminal justice system. By creating alternative avenues for avoiding criminal records, the Scheme offers accused persons a greater chance at rehabilitation and moving forward with their lives following contact with court for criminal offending.
If you have been charged with criminal offence(s), get in touch with our office to discuss whether diversion or the Spent Convictions Scheme applies in your case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
