Spent Conviction Orders in sentencing
This information explains the law about having a Spent Conviction Order made at the time you are sentenced for an offence. Find out:
- when to apply for a Spent Conviction Order
- whether a Spent Conviction Order affects your sentence
- what you need to show to get a Spent Conviction Order, and
- what you can do if you do not receive a Spent Conviction Order.
When can I apply for a Spent Conviction Order?
If you are being sentenced (being given a penalty) for an offence, you can apply for a Spent Conviction Order (including offences from when you were under 18, if you are being sentenced as an adult).
The court cannot make a Spent Conviction Order if you are sentenced to:
- an intensive supervision order, or
- a term of imprisonment (made immediate, suspended or conditionally suspended).
The court cannot make a Spent Conviction Order if you were on a pre-sentence order before being sentenced, unless the pre-sentence order was for a simple offence and the court is satisfied you complied with the programme requirements of the order.
Does a Spent Conviction Order affect my sentence?
You will not get a better or worse penalty if the court also makes a Spent Conviction Order.
Getting a Spent Conviction Order does not affect your sentence or any related orders, such as:
- having to pay court fines or costs or orders for compensation
- complying with a community based order
- your driver’s licence being disqualified or cancelled, or
- becoming a reportable offender (for offences such as sexual offences).
What do I need to show to get a Spent Conviction Order?
You need to show the court that:
- You are unlikely to commit that sort of offence again
- It will make your life difficult if you get a criminal record, usually because of work, and
- before committing this offence you had a good character, or
- the offence was trivial (not at all serious).
Character references and letters are some of the ways you can show these things to the court.
Very few offences are treated as trivial.
What if I wasn’t in court when I was sentenced?
If you are convicted and sentenced in your absence, the court can make a Spent Conviction Order when it deals with you for the offence. If a Spent Conviction Order is not made, in some situations you may be able to have the conviction and sentence set aside and have the charges reheard, so you have an opportunity to apply for a Spent Conviction Order. Otherwise, you might need to lodge an appeal to the Supreme Court.
You should get legal advice as soon as possible before making any application.
Can I appeal if I don’t get a Spent Conviction Order?
Yes, you can, but there are time limits. Get legal advice straight away.
If I'm charged with a Commonwealth offence, can I ask for a Spent Conviction Order?
If you are being sentenced for a Commonwealth offence, it is possible to ask the court to not record a conviction. This is called a 'section 19B order'.
There are different things that you need to show the court before it can make a section 19B order. You should get legal advice if you have committed an offence under a Commonwealth law.
Reviewed: 18 August 2022