No Conviction Recorded (VIC)

A judge or magistrate can choose not to record a conviction when sentencing an offender in Victoria. The decision will depend on the nature of the offence and penalties imposed. Usually a court will choose not to record a conviction if the offence is a less serious offence or the offender has no criminal history. A conviction is usually recorded for a serious offence or an offence that has aggravating factors. This discretion is contained in the Sentencing Act 1991. After a non-conviction, the offender will still have a criminal record, however.

Legislation

Section 8 of the Act states that when exercising its discretion whether or not to record a conviction, the court must consider all circumstances of the case. This includes:

• the nature of the offence; and
• the character and history of the offender; and
• the impact of a conviction on the offender’s economic or social wellbeing or employment prospects.

If a court finds a person guilty and opts not to record a conviction, it can still make an order. Orders include a community correction order or payment of a fine.

A finding of guilt without the recording of a conviction has the same effect as if one had been recorded for:

• appeals against sentence;
• proceedings for variation or contravention of a sentence;
• proceedings for a subsequent offence;
• further proceedings for the same offence.

A finding of guilt without the recording of a conviction cannot be taken to be a conviction for any purpose.

Criminal record

If a sentence is made without a conviction, the offender will still have a criminal record. This is because a person’s criminal record will list any finding of guilt for an offence, whether a conviction is recorded or not. It will also include any charges which are yet to be heard in court.

An offence for which a person is found guilty will remain on that person’s criminal record for 10 years if the person was an adult at sentencing, or 5 years if they were a child.

Impact

A conviction for an offence is a significant legal and social penalty for an offender. It can restrict a person’s opportunities in areas such as employment, housing and travel.

Many employers perform a police check when screening potential employees. Those convicted of certain offences are prohibited from working in certain fields, such as security, child care and law. A police check requires consent from the potential employee but refusing a check implies something unfavourable might be found by an employer.

In relation to travel, convictions for certain offences bar a person from entering certain countries.

A non-conviction for an offence has a lesser impact. For instance, in applying for a job or a visa, an offender may not have to disclose an offence if no conviction was recorded.

For advice or representation in any legal matter, please contact Armstrong Legal.