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Applying for old convictions to be spent

Applying for old convictions to be spent

 

The following information relates to applications to have old convictions for West Australian or Commonwealth criminal offences spent and does not relate to applying for a spent conviction at the time of sentence. Click here for information on applying for a Spent conviction order at the time of sentencing.

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 if the conviction resulted in a sentence of life imprisonment or a judge has already refused an application to have the same old conviction declared spent within the last 2 years.

What is the waiting period before I can apply? 

The period of time you must wait before applying for any conviction to be declared spent is generally 10 years, plus the length of any term of imprisonment imposed for that offence. The period of imprisonment counted is the sentence imposed, not the actual time spent in prison. 
The 10 year period is reduced to 3 years if your conviction was recorded on or after 1 August 2011 for an offence of possess cannabis (but not a cannabis plant, cannabis resin or any other cannabis derivative) or an offence of possess drug paraphernalia in or on which there is cannabis.

Waiting period if convicted of further offences

If you are convicted of another offence or offences before your previous conviction is spent, usually the 10 year waiting period will start again from the date of the latest conviction. However, if no punishment, or only minor punishment of a fine of up to $500, was imposed in relation to the latest conviction, the latest conviction will not cause the waiting period to start again (an example could be a minor traffic offence).
If the waiting period has started again, the time you must wait before you can apply for any of your convictions to be spent is:
·         10 years from the date of your latest conviction, plus
·         The longest period of imprisonment calculated from any of your convictions that are not yet spent.
If a sentence of imprisonment for a conviction was made cumulative, the calculated period of imprisonment for that conviction is the total period of imprisonment when the sentences to be served cumulatively are added together.
The 10 year period is reduced to 3 years if all of your unspent convictions were recorded on or after 1 August 2011 for offences of possess cannabis (but not a cannabis plant, cannabis resin or any other cannabis derivative), or possess drug paraphernalia in or on which there is cannabis. 

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 the waiting period has expired.

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 conviction application kit

You should seek legal advice before applying to have a serious conviction spent, however, Legal Aid WA produces a Spent Conviction Application Kit to help you make your application. This kit includes information and detailed instructions in Part 1 and in Part 2 there are forms and letters in Word format to enable you to download and type directly into them. You can obtain a hard copy of both parts of the kit by contacting the Legal Aid WA Infoline on 1300 650 579 or you can download them here:

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 recorded in a WA court may become spent by applying to the WA Commissioner of Police after the waiting period has expired.

If you have a lesser conviction but then receive a further conviction that is a serious conviction, the lesser conviction will be treated as a serious conviction and the requirements for applying to have a serious conviction declared spent will apply to both convictions. That is, an application will need to be made to the District Court.

What application form should I use?

There are two ways you can apply to the Commissioner of Police to have a lesser conviction spent:

  1. The WA Police have a form called an Application for certificate that lesser conviction is spent.  This form is available for download from the WA Police website under the heading 'Apply for Information' then 'Spending a conviction'. In completing this form you will need to get it witnessed by a person authorised to witness 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.
  2. The National Police Certificate form has a section in it where you can apply to have lesser convictions spent. A National Police Certificate 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 will have 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 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 Australian Information Commissioner on 1300 363 992 or visit their website

 

Last reviewed: 20/07/2017

Last modified: 20/07/2017 12:25 PM

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.