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Spent Convictions

This brief article discusses spent convictions in NSW.  After a period of time a conviction becomes ‘spent’ and in most circumstances, will not form part of an individual’s criminal history.

Spent Convictions

Spent convictions in NSW are handled by the Criminal Records Act 1991 (NSW), which includes a scheme that limits the effect of some criminal convictions if a period of time has lapsed since an individual’s last offence. Once this time has passed, the conviction will become ‘spent’.   The crime free period required for an eligible conviction to become spent is 10 years for an adult, pursuant to s9 of the Act and 3 years for an individual under 18 yrs, pursuant to s10 of the Act. Where an offence is eligible to become ‘spent’, it will be spent automatically.  There is no process or application for it to occur. 

Which Convictions are Eligible?

All convictions are eligible to become spent, except those outlined in s7(1) of the Criminal Records Act 1991 (NSW). These are convictions

  • For sexual offences (including indecent exposure as per s7(4))
  • For which a custodial sentence of more than 6 months was imposed (excluding ICO’s per section 7(4))
  • Against corporate bodies
  • Other convictions prescribed by the regulations.

When Does A Conviction Become Spent?

As set out in s8(1) of the Criminal Records Act 1991, a conviction is usually spent after a crime free period of 10 years. If an individual is charged within 10 years, the 10-year crime free period resets. 

In some circumstances, such as when a person is found guilty without a conviction being recorded, the charge will become spent earlier. If the individual receives a good behaviour period, the conviction will become spent when this period has lapsed. 

Additionally, in the Children’s Court, if a caution is imposed by the court, the charge is automatically spent.  If there is a change in the law, and an offence ceases to be an offence, existing convictions will immediately become spent. 

It is important to note that traffic offences are dealt with separately and run parallel from other convictions.  This means that most traffic offences are not part of the 10 year period. 

Do I Have To Disclose?

If a conviction has become spent, there is no requirement to disclose it to any other person for any purpose.  If you are asked for information regarding your criminal history, the question should be interpreted as only referring to convictions which have not been spent. 

However, it is important to note that prospective employers often ask whether you have ever been arrested or charged.  This avoids the spent conviction scheme and you therefore must disclose all previous arrests and charges.

Exclusions To the Scheme

There are several exclusions to the scheme where an old conviction may still show on a criminal background check. These often are in professions where greater weight is given to safety of individuals, such as:

  • Working with children e.g. a teacher
  • Working in aged care
  • Employment in a hospital
  • Firearm applications
  • Immigration/citizenship applications
  • Some government jobs e.g. security clearance
  • Uber or taxi drivers

Additionally, a law enforcement agency may also disclose or take into account a spent conviction. This can be in the process of prosecuting a matter in court, assessing a prospective employee, in an application to become an Australian Legal Practitioner, or to make a disclosure to another law enforcement agency. 

How Do I Get A Copy Of My Criminal Record?

You can complete an application form and paying a small fee. If you are a resident of NSW and over the age of 16, you can apply via the NSW Police Force for a ‘National Criminal History Check’ (NCHRC).  You may also request a National Police Check (NPC) from registered providers. 

A criminal record check will list any disclosable court outcomes received across states and territories in NSW.

Why BSM Law?

The criminal team at Brander Smith McKnight are able to provide further information about whether previous criminal convictions may be spent, time frames for this to occur and the potential impact on your criminal history in relation to certain areas of employment.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

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