August 21, 2014

When imposing penalty upon a guilty plea or finding of guilt after trial, a Court has the discretion under certain circumstances to refrain from recording a conviction under the Criminal Law Sentencing Act 1988.*

In South Australia a ‘no conviction’ or ‘without conviction’ ruling automatically becomes a ‘Spent Conviction’ under section 4 of the Spent Convictions Act 2009.

It is an offence to disclose a Spent Conviction and thus such an offence should not appear on a Criminal History Clearance Check through the South Australian Police or other agencies, such as CrimTrac, that arrange such reports.

So what does this mean for your Police Check or Security Clearance for your employment?

A common misconception is that a Spent Conviction will not be disclosed to your employer or show up on a Police Clearance Check.

This is not the case.

The fact that a matter was finalised by way of ‘without conviction’ or ‘no conviction’ and thus becomes a Spent Conviction does not mean that it will never appear on your history.

There are State and Commonwealth exceptions to the disclosure of Spent Convictions.

Under the South Australian Spent Convictions Act 2009 a Spent Conviction can be disclosed if:

  • Your employment is with an intelligence or security agency and has a direct involvement in national intelligence or security activities (i.e. the defence force);
  • Your employment involved the care, guardianship, supervision or custody of a child or access to a child;
  • Your employment (paid or voluntary) involves working in close proximity with children on a regular basis;
  • Your employment directly involves acting as an advocate for children in legal proceedings;
  • Your employment involved care of vulnerable people including aged persons, persons with a disability, illness or impairment;
  • Your employment (paid or voluntary) involves in close proximity with aged persons or persons with a disability, illness or impairment;
  • Any assessment of whether you are a fit and proper person or a person of good character;
  • You are employed as a Police Officer;
  • You are employed in the prevention or fighting of fires (if the finding of Guilt relates to setting or lighting fires);
  • You are being considered for appointment as a justice of the peace, member of a Court or Tribunal.

The above list is not exhaustive and there may be other circumstances in which a Spent Conviction or without conviction is disclosed to an employer or potential employer.

Accordingly while many people consider pleading guilty as a matter of convenience even when they have a valid defence, the impact of a finding of guilt, whether a conviction is recorded or not, may have a lasting impact on your employment and career.

* The discretion to refrain from recording a conviction may be exercised when the Court proposes to impose a fine, a sentence of community service, or both and the Court is of the opinion that the person is unlikely to commit such an offence again and having regard to the character, antecedents, age or physical or mental condition of the person; or the fact that the offence was trifling; or any other extenuating circumstances, good reason exists for not recording a conviction.