Spent conviction applications
I have recently had some success in making complicated spent conviction applications for clients in the Magistrates Court of Western Australia. These applications are often crucial to clients who work, or aspire to work, in certain fields or wish to travel overseas.
The power to grant a spent conviction at the time of sentencing a person for an offence exists under section 45 of the Sentencing Act 1995 (WA). The Court must be satisfied that 3 pre-conditions for the grant of a spent conviction are met before it can exercise its discretion to grant or refuse a spent conviction. Those 3 pre-conditions are:
Is the person unlikely to commit such an offence again?
Is the person of previous good character?
Is there an adverse impact that the conviction will have on the person?
Each of these pre-conditions need to be established by evidence. Spent conviction applications should not be made solely on the basis of submissions advanced from the bar table. In other words, you have to do more than just ask for a spent conviction.
The sorts of evidence you will need to support your spent conviction application are character references, evidence of your own efforts to rehabilitate (such as counselling, making restitution, writing a letter of apology to the victim through a Court mediation service etc) and evidence relating to your employment and the adverse impact a conviction will have on you.
Even after the pre-conditions are established by the evidence, all this does is enliven the Court’s discretion to grant a spent conviction. There is authority from the Court of Appeal that states that spent convictions are only to be granted in exceptional circumstances. What this means in practice is that a person has to demonstrate that the adverse impact on them of the conviction will detrimentally affect their ability to rehabilitate and continue to be an upstanding member of the community, and that this impact outweighs the public interest in a person’s convictions being disclosable to employers and other interested parties.
The hardest spent conviction applications to make are for clients who have already had the benefit of a spent conviction in the past, clients who have a dated criminal history and clients who struggle with drug addiction. However, none of these facts alone will necessarily exclude such people from being granted a spent conviction. Early advice and thorough preparation will make achieving a successful outcome a strong possibility. Please get in touch if you would like to discuss your prospects of getting a spent conviction.