Criminal records tend to hang around a long time after your offence was committed, which could impact your career and travel plans. But fortunately, they are not always permanent.
Let’s take a look at three ways that your conviction could be erased.
Spent, quashed and extinguished convictions are all governed by the NSW Criminal Records Act 1991 and they all mean that an offence will no longer be on your criminal record.
However there are significant differences between the way the three work:
What is a spent conviction?
A spent conviction is one that should no longer come up on your criminal record, and that you no longer need to declare unless you are specifically requested to do so.
Most convictions will be ‘spent’ after a crime-free period of ten consecutive years, or three years for a juvenile. After this time, you will be able to honestly say you have no criminal record.
Some NSW convictions will never be spent, including where you were:
- Sentenced to imprisonment for more than 6 months,
- Convicted of a sexual offence, or
- Convicted of any other offence prescribed by the regulations.
The offences that are currently ‘prescribed by the regulations’ are sexual offences; not drug offences.
Unfortunately, there is no way to ‘speed up’ a conviction being spent – unless you are able to convince the Commissioner of Police to ‘expunge’ the conviction, which is difficult and can only be achieved in certain circumstances.
Most traffic offences are dealt with separately, so convictions for traffic offences will not normally count against your crime-free period when it comes to spending your conviction.
However, a traffic offence will count when calculating your crime-free period for an earlier traffic offence.
That said, the following traffic offences will always count when calculating your crime-free period:
- Culpable driving;
- Dangerous driving causing death;
- Dangerous driving causing grievous bodily harm;
- Aggravated dangerous driving causing grievous bodily harm;
- Injury by furious driving; or
- Manslaughter
So, ten years of good behaviour will usually cause your earlier convictions to be spent.
But what happens if you have another run-in with the law? Can your previous conviction be revived? Fortunately, the answer is no. Under section 8 of the NSW Criminal Records Act, a subsequent conviction cannot revive any spent ones – once they’re spent, they’re gone for good.
But even spent convictions can affect you in certain situations. For example, if you are being sentenced for a criminal offence, the court will look at past convictions – even if they occurred decades before. Also, some professions and travel visa applications require you to disclose all convictions, no matter how long ago they happened.
However, spent convictions will not reappear on the record that you normally receive when undertaking a criminal record check – which contains your record of criminal convictions.
What is a quashed conviction?
Under section 18 of the Act, if your conviction is quashed it means that you are no longer guilty in the eyes of the law.
This could be because you launched a successful appeal, or because your innocence was proved in some other way, for example if fresh evidence came to light.
The Innocence Project in the USA, for instance, has led to hundreds of convictions being quashed on the basis of fresh DNA evidence.
What is an extinguished conviction?
Laws change, and actions which were once against the law can become completely legal.
Perhaps the best example of this is homosexuality.
Homosexual acts are no longer a crime, and anyone who had a conviction for such acts can apply for it to be extinguished – meaning it is wiped from their criminal history.
The mechanism to do this is contained in section 19C of the Act, which was introduced just last year. That section says that eligible homosexual offence convictions are subject to extinguishment.
While it is nice to know that there are several ways to get rid of your record and move on with your life, the best route is, of course, to refrain from getting one in the first place.
If you have an upcoming court case, it is always a good idea to get legal advice from an expert – even if you can’t afford to hire a lawyer to represent you in court.
A good criminal lawyer will be able to explain your options, the best way forward and the likely outcome – and there are several criminal law firms that offer a no obligation, free first appointment.
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