What is a conviction?
A conviction is a formal finding of guilt by a court that becomes part of the convicted person’s criminal history. The legal and social implications of receiving a criminal conviction can be significant, and the stigma of a conviction can create a difficult barrier when seeking employment.
In Victoria, when an accused person is found guilty of an offence, the court can make a finding of guilt with or without a conviction recorded. Having a conviction recorded means that it forms part of a person’s criminal record and must, therefore, be disclosed in certain situations, such as during a police check or a working with children check. On the other hand, a finding of guilt without a conviction (or with non-conviction) will still form part of the criminal record, but the record of the offence is less readily disclosable.
Conviction vs non-conviction
Many clients have often needed clarification about the difference between a ‘conviction’ and a ‘non-conviction’ in Victoria. This is because, previously, if you had been to court and pleaded guilty and received a non-conviction, you would still have a criminal record, just without a conviction being recorded.
With the introduction of the Spent Conviction legislation, the tide has turned and the difference between whether a conviction is recorded or not is more significant. If the magistrate or judge is persuaded not to record a conviction in relation to your matter, the conviction will become automatically ‘spent’ and will not be disclosed on a criminal record check (though this is subject to exceptions).
Click the link for a complete breakdown of how to avoid a criminal record. For more on achieving a non-conviction at court, please read on.
Related Information
How to get a non-conviction on a plea of guilty
Engage one of our experienced criminal lawyers to prepare a detailed submission to the court, ensuring that the principles set out in section 8 of the Sentencing Act 1991 are properly considered. For example:
- Our lawyers will consider how we can minimise the nature of the criminal conduct. This might involve taking a closer look at the evidence and inviting the prosecution to amend the summary of facts or by providing context to the magistrate to demonstrate that what, on the face of it, might seem very serious has a more innocuous intent.
- Our lawyers will address character and past criminal history by attempting to distinguish any similar offending that might appear in the criminal history, making submissions regarding any rehabilitative steps taken by the accused, and assisting in preparing character references to verify good character.
- Our lawyers will address how a conviction might impact an accused socially and economically. Submissions regarding employment prospects are always very important and should be considered in some detail prior to entering any plea of guilty.
- Finally, our lawyers will consider anything else that might tip the balance in inviting a magistrate or judge to not record a conviction. What many lawyers don’t understand is that the definition provided in section 8 is not exhaustive. It does list the above matters as relevant when a conviction is a live issue, but these are not the only things that a magistrate or judge can take into account.
What does it mean to have no conviction recorded?
In Victoria, no conviction recorded means that a magistrate or judge has considered submissions made under section 8 of the Sentencing Act 1991 and has been persuaded not to record a conviction.
A sentence made without conviction is a good result. If the spent conviction legislation does not apply, you can answer ‘no’ if you are asked whether you have ever been convicted of an offence (e.g., by an employer or on a visa application).
If no conviction is recorded and the spent conviction legislation does apply, that is, the matter does not relate to a ‘serious violence offence‘ or a ‘sexual offence‘, the conviction will be ‘spent’ and is not disclosable on a criminal record check and an employer will not be able to ask about it (although it should be noted there are some exceptions).
Usually, a non-conviction is available for offences on the lower end of the scale and to offenders who have either none or a small amount prior criminal history, but it should be noted that on a well-prepared plea, anything is possible.
A conviction will usually be handed down if the offending is very serious, but it should be noted there are cases as serious as armed robbery that have received a non-conviction disposition.
In practice, depending on the age of the conviction, it is unlikely (but not impossible) that an offender will receive a non-conviction if they have previously been convicted of an offence.
Despite whether a sentence is made with or without conviction, the offender will still have a criminal record unless the sentence satisfies the requirements of the ‘spent conviction’ legislation. This is because a finding of guilt has been made against the offender.
For a non-conviction where the spent conviction legislation does not apply, a police record check will still show that the offender was found guilty of the particular offence but that it was made without conviction.
It is a common misconception that a non-conviction will automatically mean that you don’t get a criminal record. A non-conviction in relation to a criminal matter will always result in a criminal record unless the spent conviction legislation applies. It is fair to say that conviction vs no conviction is one of the most misunderstood concepts in criminal law. That is partially because to be convicted on a plea of not guilty can often be interchanged with a finding of guilt where no conviction is recorded, which definitely confuses the issue.
Circumstances where it is open to the Court to not impose a conviction
An offender who pleads guilty in the Magistrates Court can only receive a non-conviction in relation to a sentence that is not a gaol sentence. A defendant cannot receive a non-conviction disposition where an immediate goal sentence is imposed. See this article relating to the Victorian sentencing scale, which defines what sentences are open to receiving a non-conviction. Any sentence up to a Community Correction Order is eligible to receive no conviction.
In relation to the Children’s Court, any sentence up to a Youth Attendance Order can receive a non-conviction. See this article that explains the sentencing scale in relation to the Childrens’ Court and identifies whether a conviction is open or not in relation to each sentencing disposition.
If you have to attend Court, don’t do it alone. Whether you are convicted or not could change your life in terms of your employment prospects and your ability to travel. Contact our office and consult with one of our experienced criminal lawyers so the very best submission can be put forward in relation to your matter
The Legislation
Sentencing Act 1991 s 8 – Conviction or non-conviction
- In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including—
- the nature of the offence; and
- the character and past history of the offender; and
- the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects.
- Except as otherwise provided by this or any other Act, a finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose.
- A finding of guilt without the recording of a conviction—
- does not prevent a court from making any other order that it is authorised to make in consequence of the finding by this or any other Act;
- has the same effect as if one had been recorded for the purpose of
- appeals against sentence; or
- proceedings for variation or contravention of sentence; or
- proceedings against the offender for a subsequent offence; or
- subsequent proceedings against the offender for the same offence.
Click here for further information on how to avoid a criminal record or call our offices at one of our various locations.
