Will I be convicted?
Everything you need to know about convictions and non-convictions
Will I be convicted if I plead guilty – as criminal defence lawyers, this is a question we get asked almost daily. Obviously the answer’s going to be different for every person and no lawyer will be able to guarantee a particular outcome at court. What we’re able to do is give a fairly accurate estimate of what we think a sentencing outcome is likely to be in a particular matter. This usually involves a range of penalties – so our answer will usually be that we think a sentencing outcome will fall somewhere between X and Y. The reason we can be fairly accurate is based on our experience. At Kingston Fox Lawyers, we have over 30 years combined experience in criminal law matters. That equals a lot of matters over a long period of time.
Non-conviction penalties
Let’s have a look at the sentencing options that don’t come with a conviction.
“I want a section 10”
Most people who’ve done some googling about their criminal matter would have come across the term, “Section 10”. A Section 10 is an order made by the Court accepting a person’s plea of guilty but dismissing the matter without any further penalty. Getting a Section 10 dismissal is great – but they are not a common outcome.
For a lot of matters that come before the Local Court, in the right circumstances, what used to be called a Section 10 bond is a more likely outcome. These days this sentencing outcome is called a Conditional Release Order (or CRO) without conviction. This penalty is more likely where it is a first offence, where a plea of guilty has been entered early in the proceedings, where the person is of otherwise good character and unlikely to commit another offence and has shown the court that they are contrite – that is, that they are sorry for the offence and have taken steps to make amends.
Will this sentence show on a criminal history or criminal record?
There are at least two answers to this question because criminal records are used in different ways. Take for instance a criminal history for court matters. If you go to court and receive a non-conviction outcome, that outcome will appear on your criminal history if you’re charged with a subsequent offence. The reason for this is that the court has to see what has happened in the past to determine the appropriate sentence on subsequent matters.
Now, if we think about criminal record checks for employment, then the answer becomes different. In most cases, a Conditional Release Order without conviction will show up on a criminal record check for the duration of the bond period. So if you’ve been sentenced to a CRO without conviction for a period of 12 months, the CRO will show up on the record check for that time period. If you get a Section 10 – so dismissed without conviction – then the offence becomes “spent” immediately. Read on below about spent convictions.
Conviction penalties
Sentencing outcomes that do come with a conviction are CROs with convictions, fines, Community Corrections Orders, Intensive Correction Orders and imprisonment. In NSW, it’s not possible to be fined and not receive a conviction.
How long will a conviction stay on my record?
In NSW, all convictions are capable of becoming spent with some exceptions. A spent conviction is a conviction that you are not required to disclose and can’t be taken into account for any purpose. The offences that are not capable of becoming spent are:
Convictions where a term of imprisonment of more than 6 months has been imposed
Convictions for sexual offences, and
Convictions against bodies corporate.
Other than those exceptions, an entry on a criminal history becomes spent after an offence-free period of 10 years – or an offence free period of 3 years for young people under 18.
Exceptions
But again there are some exceptions and they relate to employment in certain occupations. These include appointment or employment as a judge, magistrate, justice of the peace, police officer, member of staff of Corrective Services NSW, teacher or teacher’s aide. The exceptions also include where a person applies for admission as a lawyer. Having a conviction won’t necessarily prevent you from being employed in those positions – what it means is that it would need to be disclosed and each person would be assessed according to their individual circumstances.
In some instances, where a working with children check is conducted, all offences that have been committed, regardless of age will appear on a criminal history check.
In NSW, eligible offence entries will become spent automatically and there is nothing you need to do to make it happen.
Can I travel overseas if I have a conviction?
We often get asked whether a conviction will affect a person’s ability to travel overseas. The answer very much depends on the type of offence the conviction relates to and the country proposed to travel to. Some countries are stricter than others. Some countries may ask questions on visa applications that relate to non-conviction outcomes as well. The Smart Traveller website is always a good place to start to find out more information about the particular country that you’d like to travel to.
Do ADVOs show up on a criminal history?
An Apprehended Domestic Violence Order (ADVO) is not a criminal matter – it’s a civil order so it will not show up on a criminal record. It is an offence to breach any of the terms of an ADVO though.
For the most part, prospective employers will not know about any current or past ADVOs made against you. The exceptions include where you need to apply for a Working With Children check and you’ve had an ADVO made for the protection of a child, and where you apply for certain licences like security and firearms licences.
Have you been charged with an offence and worried about the outcome? Book an appointment below if you’d like to speak with one of our friendly solicitors. We’d be happy to assist you with your matter.
The information in this article is general information only and does not constitute legal advice.
