The Law Handbook 2024

240 NOTE The law in this chapter is current as at 1 September 2023. Introduction to criminal records What does it mean to be found guilty without conviction? In the courts, following a finding that a person is guilty of a criminal offence, lawyers often argue that their client should be spared a criminal record by ‘avoiding a conviction’. Lawyers will submit that the court should not record a conviction as this may hamper their client’s job prospects. Victorian law permits courts to find a person guilty of an offence but not to record a conviction. This can be done when adjourning a case on condition of good behaviour or when imposing a fine or community correction order. A conviction must be recorded when a severe penalty is imposed, such as a sentence of imprisonment. When the court is considering whether or not to record a conviction, the law states that all the circumstances of the case must be considered. These circumstances include the nature of the offence, the character and past history of the offender, and the impact of recording a conviction on the offender’s economic or social wellbeing or employment prospects (s 8 Sentencing Act 1991 (Vic) (‘ Sentencing Act ’)). This statement of legal principle may give the impression that not recording a conviction will protect the offender from the negative effect of a conviction on their social wellbeing or employment prospects. Unfortunately, this is not always so. A complex set of rules govern the disclosure of criminal history. Police, courts and some other agencies are able to access your records even if you are found guilty without a conviction being recorded. Whether or not your criminal history will be disclosed can depend on whether you were an adult or child at the time you were sentenced, what sentence you received, how much time has passed since you were sentenced and the nature of the offence for which you were sentenced. In addition, whether your criminal history will be disclosed can depend on whether you have been asked for a police record check for work, education or volunteering, and whether these activities involve children or vulnerable adults such as people in aged care and people with disability. How will having a criminal record affect me? Having a criminal record may affect you in two main ways: 1 a criminal record can be accessed by the police when they are investigating future criminal activity and relied on in subsequent criminal proceedings against you; 2 your criminal record may appear on a police check, which generally needs to be requested by you or with your consent. Having a criminal record could also have negative consequences if you are asked questions about your record when applying for a job, visa, insurance, voluntary work or licences of various kinds. This chapter focuses on this area. Understanding your criminal record Checking your criminal record To check your criminal record in Victoria, you need to apply for a national police check. You can apply by post or online via the Victoria Police website at www. police.vic.gov.au (click on ‘our services’ then ‘national police checks and fingerprinting’). Both application processes require you to provide identity documents and pay a fee (the fee is $52.50, reduced to $19.70 for volunteers). There are also private companies that are accredited by the Australian Criminal Intelligence 3.9 Understanding criminal records Contributor: Stan Winford, Associate Director: Research, Innovation & Reform, Centre for Innovative Justice, RMIT University