A court can hand down a guilty finding but order no conviction be recorded. However for employment checks Victoria Police may still release records of findings of guilt, regardless of whether a conviction is recorded.
In the courts, following a finding that a person is guilty of a criminal offence, lawyers often argue that their client should be spared a criminal record by “avoiding a conviction”. Lawyers will submit that the court should not record a conviction as this may hamper their client’s job prospects. Magistrates and judges will sometimes act on these submissions as a measure of lenience to the offender if this is seen to be in the public interest. Victorian sentencing law requires the courts to take these issues into account.
Victorian law permits courts to find a person guilty of an offence but not to record a conviction. This can be done when adjourning a case on condition of good behaviour or when giving a fine or community correction order. A conviction must be recorded when a more severe penalty is imposed, such as a sentence of imprisonment.
When the court is considering whether or not to record a conviction, the law states that all circumstances of the case must be considered. These circumstances include the nature of the offence, the character and past history of the offender, and the impact of recording a conviction on the offender’s economic or social well-being or employment prospects (s 8 Sentencing Act 1991 (Vic) (“Sentencing Act”).
This statement of legal principle may give the impression that not recording a conviction will protect the offender from the negative effect of a conviction on their social well-being or employment prospects. Unfortunately, this is not always so. Under the Victoria Police policy relating to the release of criminal records, employers (and others you authorise to access or receive your police record) will be informed of findings of guilt made against you, regardless of whether a conviction is recorded or not. Police may also list an offence on your record if you have been charged and the case is awaiting hearing, or even if you are only a suspect under investigation.
Having a criminal record may affect you primarily in two ways:
1 a criminal record can be accessed by the police when they are investigating future criminal activity and relied on in subsequent criminal proceedings against you;
2 your criminal record may appear on a police check, which generally needs to be requested by you or with your consent. Having a criminal record could also have negative consequences if you are asked questions about your record when applying for a job, insurance, voluntary work or licenses of various kinds.
This chapter focuses on the second area.