The questions a Magistrate or Judge must ask before granting a spent conviction order are as follows:
1. Is a person unlikely to commit such offence like this again?
This involves a prediction into what may happen in the future. A Magistrate or Judge can look at a variety of things to make this prediction, such as whether the circumstances of the offence were out of the ordinary or whether a person has participated in counselling or rehabilitation since being charged.
2. a) Is the offence trivial? OR b) Is the person of previous good character?
It is only necessary to satisfy either one of these questions. The first is answered by looking at the facts of the charge. It is rarely the case that an offence is trivial but when it is, it is usually very clear.
The second question can be answered by looking at a person’s record. Where someone has no criminal record, or their convictions are decades old, the Court can usually be satisfied that a person is of previous good character.
3. Should the person be relieved immediately of the negative effect that the conviction might have?
This is the most critical area because it involves a judicial discretion and it is why, in our opinion, you should be represented whether by ourselves or somebody else.
The Court authorities indicate that a spent conviction order is only to be made sparingly and is a clear case where there is good reason.
The Court needs to consider a number of things including the nature and seriousness of the offence, the personal circumstances of the person, the rehabilitative effect that the immediate removal of a conviction by a spent conviction will have on the person and the effect on the community.
As part of this, obviously the impact on employment, both present and future and exceptional hardship to the offender or his family, the effect on the ability to obtain work and a number of other aspects that are taken into account. The list is not exhaustive.
The Court also must balance these with whether it is in the public interest for an employer to be aware of the offence. The Court also considers what message is being portrayed to the community and the offender by making the order.
A lot of preparation goes into ensuring the application is successful because you only get essentially that one bite of the cherry so it is best that it is prepared by a professional and you are represented.
For further information contact Max Crispe on 0407 440 078, Kate Crispe on 0415 058 950, Shirley Casey on 0458 850 033 or Mel McEwen on 0437 030 713.