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Spent conviction order at the time of sentencing

Spent conviction order at the time of sentencing

When can I apply for a spent conviction order?

You can apply for a spent conviction order at the time of sentencing, either following a plea of guilty, or after you have been found guilty at trial.

If you have an old conviction that you wish to have spent, you have to follow a different process. For further information, go to Applying for old convictions to be spent.

What does a spent conviction order mean?

Go to What spent conviction orders do for information about how a spent conviction may benefit you and when you have to disclose a spent conviction.

How does a spent conviction affect my sentence?

If you receive a spent conviction, you must still comply with the rest of the sentence, for example pay a fine or be placed on a court order.

A spent conviction order does not change a driver’s licence disqualification or any other penalty such as having to pay restitution or compensation.

Is there any sentence where I cannot get a spent conviction?

A court cannot make a spent conviction order if you are sentenced to:

  • a term of imprisonment
  • a suspended term of imprisonment
  • a conditional suspended term of imprisonment
  • an intensive supervision order.

What do I need to show to get a spent conviction order?

A court cannot make a spent conviction order unless the judge or magistrate decides:

  • you are unlikely to commit such an offence again;

           AND

  • you should be relieved of the negative effects of a conviction because:
      • the offence itself was trivial; OR
      • you have previous good character

You should try to show that the offence was a “one-off” and that you will not re-offend. If possible you should also show that the offence was trivial or minor, or that you are a person of good character, or both. The circumstances of the offence and your lack of a prior record are relevant.

At some courts there may be programs you can ask to do, to help show you are not likely to re-offend, for example the Pre-sentence Opportunity Program (“POP”). There is more information about POP and other court diversion programs on the Drug and Alcohol Office WA website.

It is a good idea to bring character references with you to court to show that you are a person of good character. Go to References for court for more information.

A spent conviction order will not be given to you automatically, just because you want to have a clean record for future travel or employment. You should bring any evidence that can support the impact a conviction would have on you, for example a letter from your employer indicating that you need a police clearance in order to keep your job.

Do I have to attend court if I want a spent conviction?

If you want to apply for a spent conviction you should go to court in person. If you are unable to go and have the option of a written plea, you should ask for a spent conviction if you meet the criteria outlined here. You should include references and other supporting letters, as you would if you were appearing to make the application in person.

Do I need to be represented by a lawyer to apply for a spent conviction?

You can choose to represent yourself to apply for a spent conviction, however, it is useful to get legal advice first to be sure you have all the information you might need for your application. You can get advice from your own lawyer or from the duty lawyer. The duty lawyer can also suggest whether you should be represented when the application is made.

If you want to be represented, you can organise a private lawyer to represent you or, if you are pleading guilty, you can ask the duty lawyer to represent you.

Click here for more information about Legal Aid WA’s Duty Lawyer Service.

If I am an adult now but was a young person at the time of the offence, should I apply for a spent conviction?

With the increase in the use of DNA techniques, you may find that you are brought before the Children’s Court for offences dating back to before you turned 18 years of age.

In this case it is important to ask the duty lawyer to apply for a spent conviction order on your behalf, so that these offences do not appear on your adult record. The magistrate may take into consideration the fact that you would have been a child or young person at the time of the offence and if the matter had been dealt with then, you may not have received a conviction for the offence.

Can I appeal if I don’t get a spent conviction?

Yes you can, but note that time limits apply. You should get legal advice before appealing. Go to Appeals for more information.

 

Last reviewed: 11/03/2013

Last modified: 31/03/2015 10:41 AM

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.