In this article, Andrew Williams – a leading Criminal Defence Lawyer in Perth, Western Australia explains what a criminal record is, how it can impact employment and travel, and whether or not you can wipe your record clean.
What Offences Result in a Criminal Record?
A ‘criminal record’ generally refers to information likely to come up on either a National Police Check, a Working with Children Check or a National Police Certificate.
As a general rule, any findings of guilt or outstanding criminal charges against a person can be found on someone’s criminal record, unless they have been ‘spent’. These include:
- Convictions for criminal offences, including serious traffic offences (those that ended up in court).
- Any pending criminal charges and court proceedings.
In contrast, more minor criminal matters, such as traffic infringements or parking fines, will not come up as part of a person’s criminal record.
Who Can See Your Criminal Record?
Generally, only police and court staff have access to your full criminal record. However, a prospective employer or government visa office may request you to provide a police clearance to apply for a job or to enter the country.
It should also be noted that even when a criminal matter does not form part of your criminal record, members of the public may still be able to find information on your case if there were news reports at the time or there are publicly available court documents detailing the outcome.
Criminal Records and Employment in Western Australia
Certain types of work in Western Australia require either a National Police Certificate or National Police Check, and therefore could result in disclosing your criminal record. This includes employment:
- As a police officer.
- As a prison officer.
- Within schools, hospitals or child care.
- Within a casino.
- As a licensed builder, plumber or electrician.
You may also be asked to disclose your criminal record for certain volunteering opportunities, particularly those involving children.
Not all convictions will be a barrier to employment, however for some professions (such as being a police officer) a clean criminal record is a precondition for employment.
Criminal Records and Travel
Some countries have strict rules on allowing people convicted of crimes to enter the country. Generally, disclosure of any criminal convictions is a requirement to be granted an entry visa.
The USA and Canada are particularly notorious for not allowing a person into the country if they have a criminal record.
For example, under the US ‘Electronic System for Travel Authorization’ people hoping to enter the US for 90 days or less for travel must not:
- have been arrested or convicted for an offence or crime involving moral turpitude or a violation related to a controlled substance;
- or have been arrested or convicted for two or more offences for which the aggregate sentence to confinement was five years or more;
- or have been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities.
Having a criminal record can therefore severely limit where around the world you can travel.
How To Clear Your Criminal Record
Your criminal record may be wiped clean if the conviction which forms part of the record becomes a ‘spent conviction’.
Generally, most Western Australia convictions will be potential ‘spent convictions’ if ten years has expired since the conviction was recorded and no other conviction has been recorded during that time.
The process for applying for a spent conviction in Western Australia, involves either completing a formal application to the Commissioner of police (for simple offences) or making a formal application to the court (for serious criminal matters). In either case you are required to demonstrate that the conviction should no longer form part of your criminal record.
A spent conviction may also be granted immediately by a court at the time of the sentencing.
If you are making an application to the court for the conviction to be spent at the time of sentence, the following situations generally preclude the court from ordering the conviction to be spent in WA:
- convictions for which imprisonment (to be suspended or served immediately) is ordered;
- convictions for which an Intensive Supervision Order is imposed;
- convictions imposed against corporate entities;
- convictions for offences that are considered too serious (such as those including penalties of life imprisonment).
The court’s discretion to order a spent conviction at the time of sentencing is enlivened if it is established that:
- Such an offence is unlikely to committed again;
- The offence is trivial, or the offender is of prior good character;
- The conviction being recorded is going to adversely impact the offender.
If the conviction is a Federal offence, generally a conviction application can be made if it has been 10 years since the date of conviction (for an adult offender) or 5 years (for a juvenile offence) and:
- The offender either didn’t go to prison or was imprisoned for less than 31 months;
- The offender has not re-offended since the conviction;
- No other exclusions apply.
Get Some Legal Help
If you’re worried about your criminal record or would like to apply to have your conviction spent, it’s worth your time to speak things over with an experienced criminal lawyer.
A criminal lawyer will be able to give you a clear idea about the state of your criminal record and the prospect of success in getting your conviction spent.
