A criminal conviction can have serious repercussions on a person’s life and it can have lasting consequences. Not all convictions are necessarily serious offences, but even these less serious offences can still have a negative impact.
There are several criminal offences in NSW. Some of these offences are minor offences such as parking tickets, and some are more serious such as drug offences or rape. A criminal offence can lead to a criminal conviction. A criminal conviction is a formal verdict or finding of guilt entered by a court.
However, not all offences are criminal offences and some offences might not lead to a criminal record. A criminal conviction will appear on a person’s criminal record and the type of offence will determine the length a conviction will appear in a person’s criminal record.
Many offences are settled outside the courts by paying a fine as a civil penalty. A person cannot get a criminal record if an offence does not require court attendance. However, a person might want to challenge a fine, penalty, or offence in court. It is important to note that if a court finds a person guilty of the offence and the court imposes a fine or another penalty, it will go on the person’s criminal record.
Criminal and traffic records have separate documents in NSW and are treated separately. This however does not include major traffic offences. Serious or major traffic offences can carry criminal penalties. A person’s criminal record includes a list of all the serious traffic offences and other offences they have been found guilty of or were convicted for in court.
The Criminal Records Act 1991 (NSW) regulates criminal records in New South Wales. If a person has to go to court for an offence, the details are recorded in a person’s criminal history. This criminal history is a record kept by the Police and it contains the details of all the offences a person has been to court for. It will also list any apprehended violence orders and warrants. Information will be listed in a person’s criminal when:
· A person was found guilty
· A person was found not guilty
· A person was given a section 10 dismissal
· Charges were dismissed
The prosecutor will usually give the magistrate a copy of a person’s criminal history during a bail application or when there is a change in any of the bail conditions.
If the offence is a driving offence and if the person is convicted by the court, the conviction is recorded on a person’s driving record. If the offence is a criminal offence and a person is convicted by the court, the conviction is recorded on a person’s criminal record.
A criminal record includes a list of all the criminal offences where a person has pleaded guilty or has been found guilty and was convicted by a Magistrate. A criminal record can also include serious traffic offences such as drink driving, or dangerous or negligent driving where someone is hurt, or driving whilst disqualified. A criminal record does not include AVOs, dismissed criminal charges, or offences a person was not found guilty of. Minor offences, such as uttering offensive language in public, or entering a public fountain, are summary offences that can also result in a criminal record.
The prosecutor will give the magistrate a copy of a person’s criminal record during sentencing or penalty proceedings after a criminal conviction. A person can access a copy of their criminal record on the NSW Police Force website under the Criminal Records Section.
Most convictions become spent after ten consecutive years for adult offenders and three consecutive years for child offenders. It is important to note the three year and ten year period have to be crime-free periods, a person cannot commit or be convicted of another punishable offence by imprisonment within ten or three years.
A spent conviction means a person will no longer have these offences on their criminal record and they do not have to disclose any information regarding a spent conviction to any other person. However, just because the conviction is no longer part of a criminal record, doesn’t mean the criminal records and convictions disappear completely. The criminal conviction will still be noted on a person’s criminal history and it may be disclosed in certain circumstances.
Section 7 of the Criminal Records Act 1991 outlines that all criminal convictions can become spent, except in the following circumstances:
· Murder and other serious offences will never be spent
· A person was convicted for an offence with a prison sentence of more than six months
· Criminal convictions for sexual offences
· Convictions imposed against companies or corporate bodies
· Convictions as prescribed in the Criminal Records Regulations 2014 (NSW)
It is against the law for a person to disclose, without lawful authority, information concerning a spent conviction of another person. The maximum penalty for this is a fine of $5,500 or 6 months imprisonment or both.
However, the Criminal Records Section of the police in NSW can disclose information about a conviction even if a conviction has become spent. The Police can disclose the spent conviction information to:
· Another law enforcement agency
· The court in compliance with a court order
· Other State and Federal Agencies
Evidence of spent convictions may also be presented in court proceedings and during sentencing for another offence. According to Section 12 of the Criminal Records Act 1991 (NSW) a person is under no obligation to disclose any matter pertaining to their spent convictions.
A person with a good character can maintain a clean criminal record with a Section 10 (1)(a) dismissal. The courts will release a person on a conditional release order without conviction and with no criminal record. This means a person will have no criminal conviction, fine, or in driving cases, not lose their driving licence. A defence attorney needs to make strong and concise arguments for the court to award a Section 10.
A criminal conviction in NSW will impact and complicate day-to-day life in several ways. A criminal record represents a person’s past actions for many years and this negative association will leave a black mark in numerous aspects of life. Most first-time offenders are motivated to live a law-abiding life and pursue full-time employment. However, most offenders realise a criminal record leads to numerous rejections when applying for jobs.
Certain criminal convictions might not follow an offender for a lifetime, but it is better to avoid convictions whenever possible. Avoiding a conviction is far better than living with a conviction. A criminal conviction can have an impact on the following aspects of life:
· Renting a house, or commercial property
· Reputation in the community
· Personal life
· Difficulty to obtain finance or insurance
· Difficulty to obtain professional, security, or firearm licences
· Harsher sentences for new convictions
· Difficulty to avoid conviction for a new charge
A criminal record has the potential to prevent a person from getting a job. This might be one of the harshest consequences of having a criminal record. Employers are free to hire employees with a criminal record. However, employers are nervous to consider employing a person with any criminal convictions, even more so if the person were charged with violence, sexual assault, or dishonesty. Most employers will conduct background checks such as a national police check to make sure they deter crime inside their business.
Employers tend to reject job seekers with criminal convictions, this makes finding a job after serving a sentence challenging and overwhelming. However, it is important not to lie about a criminal record when applying for employment. An employer can in certain circumstances obtain a copy of a person’s criminal record and an employer can terminate the employment contract if the employee applied under false pretences. On the other hand, a person who is honest about their criminal record might have a chance to get a job.
There is no federal law in Australia and no law in NSW that prohibits a person from criminal record discrimination. The Australian Human Rights Commission can investigate complaints of criminal record employment discrimination as a human rights violation under the Australian Human Rights Commission Act 1986, but it can only mediate conciliation, there is no effective enforcement mechanism available.
In NSW there are certain careers or types of employment where people with a criminal record may not be employed. Some professional and occupational licensing bodies have developed licensing and registration rules to address the relevance of a person’s criminal record to a particular profession for instance in the health, or the legal profession. Professions or trades restrict the participation of people with a criminal record or they thoroughly scrutinise a person’s criminal record before their admission, registration, or licensing.
The protection of children in Australia is very important. All the jurisdictions in Australia have made a policy decision that the criminal records of people working with children will be scrutinised. In some instances, employers are prohibited to hire employees who have certain convictions. The Child Protection (Prohibited Employment) Act 1988 in NSW forbids individuals who were convicted of certain sex offences to work in child-related work environments such as schools or child care.
Renting a House
A landlord can see a criminal record on rental applications as a risk. They will do a thorough criminal record check when they receive a rental application or they might even ask about a criminal record on the application form. A criminal charge might most likely be one of the deciding factors in accepting or denying a rental application. A person with criminal convictions might therefore have difficulty finding a place to live.
A new policy in NSW does not allow a person who has been convicted of a serious drug offence in five years to live in public housing. This might prompt offenders to return to crime, and this contradicts the “public safety” rationale of this new policy.
Reputation in the Community
A criminal conviction or history will possibly affect a person’s reputation in the community and people will perceive a person differently. People will most likely act with more caution around a person with a criminal record and often exclude them from social or community events. A criminal conviction will have a negative impact for a very long time.
A person with a criminal record might have difficulty when traveling. Most countries conduct a criminal record check before issuing a visa for travel and some countries might make entry difficult, regardless of the charge. A criminal history check might also affect applying for a passport and result in a time-consuming process.
Australia has a close relationship with the USA, Canada, and the United Kingdom. All these countries have access to the National Repository of Criminal Records. Every criminal record holder and the relevant offence they committed are listed here. An officer can enter a person’s name or scan a passport to find out if a person has a criminal record.
The adoption process in Australia is very strict and adoption agencies want to ensure the safety of children. A criminal record will affect getting custody of a child and can limit the opportunity to adopt a child.
A criminal record can take a huge toll on a person’s personal life. It might even lead to divorce or start a battle to retain child custody. The impact a criminal conviction has on an offender’s life sometimes outweighs the punishment for the offence. It is important to realise the devastating effects a criminal record can have on a person and their family and therefore it is important to hire an experienced criminal defence lawyer to prepare and argue a case to reduce the severity of a sentence or penalties imposed.