Applying for old convictions to be spent

What is a conviction?

A conviction is a record that you have committed a particular offence. A conviction may be recorded either following a plea of guilty, or after you are found guilty at trial.

Can I apply for a conviction to be spent?

In certain circumstances, you can apply for a conviction to be spent straight away, at the time you are sentenced. Click here for information on applying for a Spent conviction order at the time of sentencing.

Otherwise, after a waiting period, you can apply to have your old conviction declared spent. However you cannot apply to have your old conviction spent if the conviction resulted in a sentence of life imprisonment.

How do I apply to get an old conviction spent?

Old convictions for West Australian criminal offences are classed as either serious convictions or lesser convictions. How you apply for an old conviction to be spent depends on whether it was a serious or a lesser conviction.

Serious convictions

What is a serious conviction?

A serious conviction is where the penalty given was imprisonment for more than one year, or a fine of $15,000 or more.

How do I apply to get a serious conviction spent?

A serious conviction may be declared spent by applying to the District Court after a waiting period has expired. This period is generally 10 years plus the length of any term of imprisonment relevant to that conviction. In the case of an offence of possessing cannabis (but not possessing a cannabis plant, cannabis resin or any other cannabis derivative) or an offence of possessing a pipe or smoking implement containing detectable traces of cannabis, the waiting period is 3 years, as long as the conviction for that offence occurred on or after 1 August 2011.

If you have another conviction after the conviction that is the subject of your application, the waiting period starts again from the time of the latest conviction. The waiting period is then 10 years (or 3 years if that waiting period applies) plus the longest term of imprisonment that was imposed for those convictions. The only time the waiting period does not start again is when the latest conviction attracted a minor punishment only. A minor punishment means a fine of less than $500.

The judge in the District Court will decide whether to make your conviction spent by taking into account the following factors:

the length and kind of sentence imposed when you were convicted
the length of time since the conviction was made
whether the conviction prevents you from working in a particular trade, profession or business or in particular employment
the offence and how serious it was
the circumstances in which the offence was committed
your circumstances at the time of the offence and at the time of the application, and
any public interest to be served by not making an order.

The application should be detailed and must be supported by affidavit.

Spent Convictions Kit

You should seek legal assistance in applying to have a serious conviction spent, however, Legal Aid WA has produced a kit, which gives you more information about how to apply to the District Court. The kit includes the forms and letters that you need.

The kit only applies to serious convictions. You do not need the kit to apply for a lesser conviction to be declared spent.

Click here for a PDF version of the Spent Conviction Kit. Click here for a WORD version of the Forms and Letters to be used with the Spent Conviction Kit.

Lesser convictions

What is a lesser conviction?

A lesser conviction is where the penalty was imprisonment for one year or less, or a fine of less than $15,000.

How do I apply to get a lesser conviction spent?

A lesser conviction may become spent by applying to the Commissioner of Police after a waiting period has expired. The waiting period is generally 10 years plus the length of any term of imprisonment imposed. In the case of an offence of possessing cannabis (but not possessing a cannabis plant, cannabis resin or any other cannabis derivative) or an offence of possessing a pipe or smoking implement containing detectable traces of cannabis, the waiting period is 3 years, as long as the conviction for that offence occurred on or after 1 August 2011.

Additionally, if the second conviction is a serious conviction, the lesser conviction will be treated as a serious conviction and the requirements for wiping away a serious conviction will apply to both convictions. That is, an application will have to be made to the District Court for the conviction to be declared spent.

What application form should I use?

There are two methods that you can use to apply to have a lesser conviction spent. The WA Police have an application form for a certificate that lesser conviction is spent. This form is available for download from the WA Police website. In completing this form you will need to get it witnessed by a person authorised to take a statutory declaration. Once the form is completed you will need to post it to the address given on the form. There is no fee to process this application.

The National Police Clearance form now has a section in it where you can apply to have lesser convictions spent. A National Police Clearance form is available for download from the WA Police website. You can take this form to your nearest Australia Post outlet and submit it for processing. When you do this you will need proof of identity and to pay a fee.

What does it mean to have a conviction spent?

Go to What spent conviction orders do for information about spent convictions and when you have to disclose them.

What if I have a conviction for a federal or Commonwealth offence?

If you have an old conviction for an offence against a law of the Commonwealth (ie a federal offence) it can become spent under the Crimes Act 1914 (Cth).

Generally, where a Commonwealth offence attracted a term of imprisonment of 30 months or less, or no imprisonment at all, the conviction will automatically become spent after a waiting period has expired.

The waiting period is:

for an adult, 10 years, beginning on the date of conviction; and
for a minor, 5 years, beginning on the date of conviction.

For information on spent convictions for Commonwealth offences contact the Privacy Commissioner on 1300 363 992 or visit their website.

Last reviewed: 16/04/2013

Last Modified: 16/04/2013

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.